State v. Mitchell ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. MITCHELL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JASON C. MITCHELL, APPELLANT.
Filed June 8, 2021. No. A-21-062.
Appeal from the District Court for York County: JAMES C. STECKER, Judge. Affirmed.
Jerry D. Clinch, of Fillman Law Offices, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
RIEDMANN, MOORE and BISHOP, Judges.
RIEDMANN, Judge.
INTRODUCTION
Appellant, Jason C. Mitchell, appeals his plea-based conviction in the district court for
York County, asserting that the district court abused its discretion during the sentencing phase of
the case. We affirm.
STATEMENT OF FACTS
On September 15, 2019, Mitchell picked up the victim from her residence at approximately
1 a.m. Once she entered his vehicle, Mitchell grabbed her hair and forced her head between the
seats to prevent her from seeing where they were going. Mitchell then struck her on the face with
an unidentified object, at which point the victim grabbed the steering wheel. Mitchell bit her left
index finger as she tried to free herself from his grasp. Mitchell then forced the victim out of his
vehicle, leaving her on an unknown country road alone. After a short time, Mitchell returned and
demanded that the victim enter his vehicle. Mitchell then drove to a parking lot where he digitally
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penetrated her vagina and rectum, causing severe pain. Mitchell then began to drive and did not
allow the victim to exit the vehicle until he dropped her off at her home at approximately 6 a.m.
Mitchell was originally charged with one count of sexual assault and one count of third
degree domestic assault. Pursuant to a plea agreement, the State amended count I to attempted first
degree sexual assault and dismissed count II. Mitchell pled no contest, and the court accepted his
plea, and found him guilty of attempted first degree sexual assault. At the plea hearing on
September 24, 2020, Mitchell’s attorney requested that the sentencing hearing be delayed so that
Mitchell could move into a residence that offers a treatment program, although he was not yet
enrolled at that time. His attorney asked that he have sufficient time to allow him to complete
whichever treatment program accepted him. The court agreed and furloughed Mitchell effective
September 26 to begin treatment at the Siena Francis House. It scheduled sentencing for December
28.
Mitchell filed a motion to continue sentencing on December 23, 2020. In the motion,
Mitchell claimed he was still in the process of obtaining treatment, had been quarantined for
exposure to and a positive test for COVID-19, and had been unable to start treatment due to not
having the requisite recommendations from the evaluations he had undergone as part of his
furlough. At the sentencing hearing on December 28, the court denied the motion to continue,
expressing frustration that no treatment was started prior to Mitchell’s COVID-19 diagnosis.
The court sentenced Mitchell to 12 to 16 years’ incarceration with credit for 281 days’ time
served. The court also found the crime to be an aggravated offense and required Mitchell to register
for life under the Nebraska Sex Offender Registration Act (SORA). Mitchell appeals.
ASSIGNMENTS OF ERROR
Restated, Mitchell assigns that the district court abused its discretion by (1) denying his
motion to continue sentencing; (2) imposing an excessive sentence; and (3) determining his offense
was aggravated, thereby requiring lifetime registration under SORA.
STANDARD OF REVIEW
A decision whether to grant a continuance in a criminal case is within the discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Baxter, 295
Neb. 496, 888 N.W.2d 726 (2017). 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. Id.An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
A trial court’s factual determination that a defendant’s crime was an aggravated offense
under SORA is reviewed as a question of the sufficiency of the evidence. State v. Wilson, 306 Neb.
875, 947 N.W.2d 704 (2020).
ANALYSIS
Motion to Continue Sentencing.
Mitchell argues that the district court abused its discretion by denying his motion to
continue sentencing. He alleges that after a court-granted furlough to obtain treatment before
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sentencing, he made reasonable efforts to obtain treatment but could not do so due to circumstances
beyond his control. He also claims that the denial of his motion prejudiced him, as shown by his
sentence and the court’s “effectively denying [Mitchell] the opportunity to obtain the treatment for
which he was furloughed by the trial court to receive.” Brief for appellant at 8. We find no abuse
of discretion in the court’s refusal to grant the continuance.
A court does not abuse its discretion in denying a continuance unless it clearly appears that
the party seeking the continuance suffered prejudice because of that denial. State v. Baxter, supra.Where the criminal defendant’s motion for continuance is based upon the occurrence or
nonoccurrence of events within the defendant’s own control, denial of such motion is no abuse of
discretion. Id.At the sentencing hearing, Mitchell’s attorney explained that Mitchell had been residing at
the Siena Francis House per the court’s furlough order but claimed Mitchell struggled to begin
treatment. Included in the presentence investigation report (PSR) were documents indicating that
Mitchell arrived at the Siena Francis House on September 26, 2020, and had contacted a counseling
service on October 27 about his need to complete a substance abuse evaluation and a psychosexual
evaluation. Mitchell had tested positive for COVID-19 and had been quarantined for
approximately three weeks in November. His attorney received an email on December 27 from the
counseling service indicating it would send Mitchell’s evaluations by January 1, 2021.
Regardless, from the date of his furlough on September 26, 2020, until the December 28
sentencing, Mitchell did not participate in any treatment program, despite that being the reason for
his furlough. He arrived at the Siena Francis House on September 26, but the record contains no
information that he began any program with them. He first contacted a counseling service on
October 27 to schedule a substance abuse and psychosexual evaluation. As noted by the State at
sentencing, Mitchell had “not taken any affirmative steps . . . to receive any type of treatment,
whether it’s AA meetings, NA meetings, speaking to a priest, speaking to any -- a preacher,
anybody.” While we recognize that Mitchell was quarantined for a good portion of November, the
record does not explain the one month delay between his arrival at the Siena Francis House and
his initial request for an evaluation. As to that delay, no evidence was presented to support a
conclusion that obtaining such treatment was beyond his control. See State v. Baxter, 295 Neb.
496, 888 N.W.2d 726 (2017). Therefore, we find no abuse of discretion.
Additionally, there is no indication that Mitchell was prejudiced by the court’s denial of
his motion to continue. Based on the PSR, the details of the crime, Mitchell’s criminal history, and
his failure to take responsibility for his actions in the commission of the crime, there is no evidence
that Mitchell would have received a lesser sentence had he been granted a continuance and
received treatment prior to sentencing.
Thus, we find no abuse of discretion in the court’s denial of Mitchell’s motion to continue.
Excessive Sentence.
Mitchell does not dispute that his sentence was within the prescribed statutory limitations;
however, he contends that the district court abused its discretion by failing to adequately consider
his education, social background, and criminal history. We disagree.
Mitchell pled no contest to and was convicted of one count of attempted first degree sexual
assault of an adult, a Class IIA felony. Neb. Rev. Stat. §§ 28-201 (Cum. Supp. 2020) and 28-319
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(Reissue 2016). He was sentenced to 12 to 16 years’ incarceration with 281 days’ credit for time
served. Because Mitchell’s sentence was within the prescribed statutory limitations, we review for
abuse of discretion by the district court.
The law governing review of criminal sentences is well settled. State v. Blaha, 303 Neb.
415, 929 N.W.2d 494 (2019). Where a sentence imposed within the statutory limits is alleged on
appeal to be excessive, the appellate court must determine whether a 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. Id. 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) 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. Id. 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 circumstances surrounding the
defendant’s life. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
The Level of Service/Case Management Inventory (LS/CMI) indicated that Mitchell’s
education/employment put him at high risk of recidivism. Mitchell was 39 years old, had dropped
out of high school in the 11th grade, and had completed his GED at the time of sentencing. He had
completed 1.5 years of a computerized drafting program at a community college but stopped when
he no longer had the funds to continue. The PSR specifically states that Mitchell does not suffer
from learning disabilities.
Regarding Mitchell’s social background, the LS/CMI indicated his antisocial pattern put
him at a very high risk of recidivism, his procriminal attitude/orientation and family/marital status
at a high risk of recidivism, and his companions at a medium risk of recidivism. Mitchell was
assessed at the “problem risk” range of the Substance Abuse Questionnaire because of his early
and diverse antisocial behavior, his minimization of his actions in the present case, and unfavorable
attitude toward convention. He also has financial struggles, is homeless, has no living parents, and
has few anti-criminal friends. His closest friends are three ex-girlfriends. Mitchell admits to not
associating with people his own age and primarily communicates with others online or via texting.
Mitchell’s father was an alcoholic, as is Mitchell’s sister, who lives in York and does not have a
positive relationship with Mitchell. Mitchell is legally separated from his wife, and he does not
know where she is. He has four biological children. He has not had contact with the three youngest
since 2010, and he only recently began contacting his eldest daughter, whose mother would not let
them communicate due to Mitchell’s drug use.
The LS/CMI indicated that Mitchell was at high risk for recidivism based on his criminal
history. His criminal history included four traffic-related convictions, along with third degree
assault, trespassing, two counts of injuring or destroying the property of another, making a false
statement to a police officer, drug-related charges, aiding and abetting a Class IV felony, tampering
with physical evidence, committing intentional child abuse, violating a protection order, and
criminal mischief. The LS/CMI indicated that one of the assaults involved Mitchell slapping his
girlfriend hard enough to cause her ear drum to rupture. As a teenager, he had been placed in a
youth rehabilitation and treatment facility, and as an adult, he had been jailed three separate times
and imprisoned once prior to sentencing for the current case.
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More information about the incident at issue was given in the LS/CMI. Mitchell stated he
was arguing with the victim, who was his former girlfriend, as she accused him of lying, cheating,
and stealing. Mitchell admitted that at the time he was on medication and combined that with
alcohol, marijuana, and methamphetamine. In the course of the argument, according to Mitchell,
the victim admitted to cheating on Mitchell, which angered him. The two began slapping each
other, followed by the victim punching Mitchell, who then began strangling the victim. Mitchell
stated in the LS/CMI that he knew he was “definitely in the wrong” and wished he had never met
the victim.
At sentencing, the court made it clear that it read and considered the contents of the PSR.
The court noted Mitchell’s age and education, the victim’s status as Mitchell’s ex-girlfriend, the
LS/CMI’s findings, his risk for future violent behavior, his failure to take responsibility for his
actions in the incident, the violent nature of the offense, and his prior convictions. Thus, when
considering all the information contained in the PSR as well as the violent nature of the offense,
the court found that Mitchell was not fit as a candidate for probation and that a lesser sentence
would depreciate the seriousness of the crime and would promote disrespect for the law. It found
that incarceration was necessary for the public’s protection, that Mitchell would likely engage in
additional criminal conduct should he be placed on probation, and that there was no reason to
excuse or justify the offense.
Therefore, because the court considered all the required factors under State v. Blaha, 303
Neb. 415, 929 N.W.2d 494 (2019), and stayed within the prescribed statutory limitations, we find
no abuse of discretion as to Mitchell’s sentence.
Registration under SORA.
Mitchell argues the district court erred in finding his offense was aggravated, thereby
requiring him to register for his lifetime under SORA. Mitchell specifically asserts that the district
court abused its discretion by failing to explicitly indicate what it considered in making its
determination. We find this argument to be without merit.
The applicable section of the Nebraska Sex Offender Registration Act, Neb. Rev. Stat.
§§ 29-4001 to 29-4014 (Reissue 2016), defines “aggravated offense” as any registrable offense
under § 29-4003 which involves the penetration of, direct genital touching of, oral to anal contact
with, or oral to genital contact with a victim age 13 years or older without the consent of the victim.
§ 29-4001.01. A sentencing judge need not consider only the elements of an offense in determining
whether an aggravated offense as defined in § 29-4001.01 has been committed. State v. Hamilton,
277 Neb. 593, 763 N.W.2d 731 (2009). Instead, the court may make this determination based upon
information contained in the record, including the factual basis for a plea-based conviction and
information contained in the PSR. Id.Mitchell argues that because the court did not specifically iterate what it considered in
finding the offense to be aggravated, the court abused its discretion; however, the court indicated
at sentencing that it had reviewed the information contained in the record, the factual basis of the
plea agreement, and the contents of the PSR. There is no indication in the record that the court
failed to consider the required factors for an aggravated sentence or for requiring lifetime
registration under SORA. See State v. Hamilton, supra.-5-
Nonetheless, the district court was not required to explicitly iterate what it considered in
finding the offense to be aggravated. In State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019),
the defendant argued his sentence was excessive and that the district court abused its discretion by
failing to explicitly analyze factors set forth in Neb. Rev. Stat. § 29-2260 (Reissue 2016), thereby
depriving him of a just sentence. However, the Nebraska Supreme Court noted that § 29-2260 is
“a directive to the trial court as to the factors to be considered in imposing the sentence but that it
contains no requirement that the court make specific findings.” State v. Garcia, 302 Neb. at 440,
923 N.W.2d at 750. Similarly, § 29-4001.01, which defines what constitutes an aggravated offense,
does not require the court to state on the record the evidence upon which it relied in reaching the
factual finding that the offense was aggravated. Therefore, the absence of such information does
not constitute an abuse of discretion.
CONCLUSION
Because we find no abuse of discretion, we affirm the decision of the district court.
AFFIRMED.
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