State v. Lopez ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. LOPEZ
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.
SCOTT A. LOPEZ, APPELLANT.
Filed February 7, 2023. No. A-22-363.
Appeal from the District Court for Colfax County: CHRISTINA M. MARROQUIN, Judge.
Affirmed as modified.
Erik C. Klutman, of Sipple, Hansen, Emerson, Schumacher, Klutman & Valorz, L.L.C.,
for appellant.
Douglas J. Peterson, Attorney General, and Teryn Blessin for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
PIRTLE, Chief Judge.
INTRODUCTION
Scott A. Lopez appeals his plea-based convictions in the district court for Colfax County
for three counts of intentional child abuse, no serious bodily injury, and one count of third degree
sexual assault. He alleges several errors by the trial court regarding his sentences. Based on the
reasons that follow, we affirm as modified.
BACKGROUND
Pursuant to a plea agreement, Lopez pled no contest to three counts of intentional child
abuse, no serious bodily injury, Class IIIA felonies, and one count of third degree sexual assault,
a Class I misdemeanor. Prior to accepting Lopez’ pleas, the State set forth a factual basis for the
charges:
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On October 19, 2021, the Colfax County Sheriff’s Department received a Health and
Human Services Child Abuse Hotline priority 1 call that [A.R.] was being sexually
assaulted. Officers immediately located, on the same day, [A.R.] [A.R.] reported to officers
that between August 1st, 2018, and January 31st, 2019, [A.R.], born in 2007, was being
babysat by Scott Lopez. During that time, Scott Lopez, born April of 1987, sexually
penetrated [A.R.] on at least three different occasions. [A.R.] stated that the first assault
took place in the living room of the family’s old house located at 237 West 2nd Street, in
Leigh, Colfax County, Nebraska. Specifically, Scott Lopez anally penetrated [A.R.] when
she was between the ages of ten and eleven years old and in the 4th grade.
[A.R.] further stated that these or similar sexual assaults where she was penetrated
by Scott Lopez occurred multiple different times at a different location — excuse me, all
in either the first house or the second house located on West 2nd Street in Leigh, and then
later in a house at 236 North Oak Street in Leigh, Nebraska, while Mr. Lopez was
babysitting [A.R.] and her siblings. All events occurred in Colfax County, Nebraska.
The court accepted the pleas of no contest and found Lopez guilty on all four counts. The
court then ordered a presentence investigation and a sex offender risk assessment.
At the sentencing hearing, the court sentenced Lopez to a period of 3 years’ incarceration
followed by 18 months post-release supervision on each of the first three counts. On count 4, the
court sentenced him to a period of 1 year’s incarceration. The sentences were ordered to run
consecutively. The court also found that Lopez committed an aggravated offense as defined by
Neb. Rev. Stat. § 29-4001.01(1)(b) (Reissue 2016) and that, therefore, he was required to register
under the Nebraska Sex Offender Registration Act (SORA) for the rest of his life. The court’s
separate post-release supervision order stated that on counts 1, 2, and 3, Lopez would serve a term
of 18 months post-release supervision.
ASSIGNMENTS OF ERROR
Lopez assigns that the trial court erred in (1) imposing excessive sentences, (2) imposing
consecutive sentences of imprisonment, (3) failing to determine whether the post-release
supervision ordered for counts 1, 2, and 3 were consecutive or concurrent to each other, and (4)
determining that he committed an aggravated offense under § 29-4001.01 and was therefore
subject to lifetime registration under SORA.
STANDARD OF REVIEW
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Abligo, 312 Neb. 74, 978 N.W.2d 42 (2022). An
abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.Generally, it is within a trial court’s discretion to direct that sentences imposed for separate
crimes be served either concurrently or consecutively. State v. Galvan, 305 Neb. 513, 941 N.W.2d
183 (2020), modified on denial of rehearing 306 Neb. 498, 945 N.W.2d 888 (2020). Such
discretion applies equally to terms of imprisonment and terms of post-release supervision and
presumably includes discretion to make one form consecutive and the other concurrent. Id.-2-
ANALYSIS
Excessive Sentences.
Lopez first assigns that the trial court erred in imposing excessive sentences. He argues
that the court failed to consider certain mitigating factors, such as his criminal history, his mental
health, and his childhood, in determining his sentences.
When imposing a sentence, a sentencing judge should consider 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 violence involved in the commission of the crime. State v. Abligo,
supra. The sentencing court is not limited to any mathematically applied set of factors, but the
appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing
judge’s observations of the defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life. State v. Miller, 312 Neb. 17, 978 N.W.2d 19 (2022).
Lopez was convicted of three counts of intentional child abuse, no serious bodily injury,
which are Class IIIA felonies. Neb. Rev. Stat. § 28-707 (Reissue 2016). The statutory sentencing
guidelines for a Class IIIA felony allow for up to 3 years’ imprisonment and 18-months’
post-release supervision with a minimum of 9-months’ post-release supervision if imprisonment
is imposed. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). Lopez was sentenced to 3 years’
imprisonment and 18-months’ post-release supervision on each charge.
Lopez was also convicted of third degree sexual assault, a Class I misdemeanor. Neb. Rev.
Stat. § 28-320 (Reissue 2016). Statutory guidelines for a Class I misdemeanor allow for up to 1
year imprisonment. Neb. Rev. Stat. § 28-106 (Reissue 2016). The court sentenced Lopez to 1 year
imprisonment. Accordingly, Lopez’ sentences are within the applicable statutory ranges, and he
does not contend otherwise. An appellate court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial court. State v. Abligo, supra.At the sentencing hearing, the court stated that it reviewed the presentence investigation
report. That report contains information going to each of the sentencing factors. See State v. Miller,
supra. The trial court further stated:
I find, with regard to sentencing, I have considered [Lopez’] age, I’ve considered his
evaluations and assessments that were completed in the Presentence Investigation, I’ve
reviewed his criminal record, I’ve considered the facts in this case that result in these
convictions. The LS/CMI is high range. He appears above average on the risk to reoffend.
The MMPI-3 indicates serious thought dysfunction. And he’s almost two times the rate of
recidivism compared to an average individual who has committed a sexually motivated
offense. For those reasons I find that a lesser sentence would depreciate the seriousness of
the crime, would promote disrespect for the law.
We conclude that the trial court properly considered the mitigating factors and there is
nothing to indicate it considered any inappropriate factors. On this record, we find no abuse of
discretion in the length of the sentences imposed. This assignment of error is without merit.
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Consecutive Sentences.
Lopez also assigns that the trial court erred in imposing consecutive sentences of
imprisonment. He argues that because the charges against him alleged the same dates for the
offenses and involved the same victim, the charges were so intertwined that the sentences should
run concurrently.
The charges for counts 1, 2, and 3 in the third amended information were identical in
language as follows:
On or between August 1, 2018 and January 31, 2019, [Lopez] did knowingly and
intentionally cause or permit a child, to-wit: A.R. Born 2007, to be placed in a situation
that endangered said child’s life or physical or mental health; cruelly confined or cruelly
punished said child or deprived said child of necessary food, clothing, shelter or care, not
resulting in serious bodily injury[.]
Count 4, third degree sexual assault, alleged the same dates for the offense as counts 1 through 3.
Generally, it is within a trial court’s discretion to direct that sentences imposed for separate
crimes be served either concurrently or consecutively. State v. Galvan, 305 Neb. 513, 941 N.W.2d
183 (2020), modified on denial of rehearing 306 Neb. 498, 945 N.W.2d 888 (2020). At the plea
hearing, the factual basis for the charges included that the victim had stated that Lopez assaulted
her multiple times between the dates of August 1, 2018, and January 31, 2019. Lopez was charged
with and found guilty of four separate crimes that occurred during that timeframe. It is
inconsequential for sentencing purposes that the crimes all occurred within the same timeframe
and involved the same victim. In addition, Lopez was advised at the plea hearing that the sentences
could be ordered to be served consecutively and he indicated that he understood. We find no abuse
of discretion in the trial court’s imposition of consecutive sentences.
Post-Release Supervision.
Lopez assigns that the trial court erred in failing to determine whether the post-release
supervision ordered for counts 1, 2, and 3 was to run consecutively or concurrently. As previously
stated, on each of the charges for intentional child abuse, no serious bodily injury, the court
sentenced Lopez to 3 years’ imprisonment and 18 months’ post-release supervision. It did not
specifically state whether the post-release supervision ordered in each count was to be served
consecutive or concurrent to each other.
The State submits, and we agree, that the court imposed concurrent sentences of
post-release supervision. At the sentencing hearing the court stated: “The post-release order will
commence upon release from custody for a period of 18 months.” The trial court’s separate
post-release supervision order stated: “Following your release from the sentence of incarceration
imposed by the Court, you are sentenced on Counts 1, 2 and 3 to a term of 18 months of
POST-RELEASE SUPERVISION, under the supervision of the District 5 Probation Office.”
Although the court did not explicitly state that the post-release supervision sentences were to run
concurrently, it is apparent that is what it intended. Had the court wanted to impose three
consecutive 18-month terms of post-release supervision, it would have stated so. Rather, it only
referenced a term of 18 months upon release from incarceration. We conclude that the court
imposed concurrent terms of post-release supervision.
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Sex Offender Registration Act.
Lopez assigns that the trial court erred in determining that he committed an aggravated
offense under § 29-4001.01 and was therefore subject to lifetime registration under SORA. At the
sentencing hearing, the court stated:
[R]egarding the [SORA], the Court must consider the offense and the facts that are set forth
in the Presentence Investigation and the factual basis to determine the registration
requirements. I have considered those matters. I do find, from the record and the
Presentence Investigation, that this is an aggravated offense involving penetration with a
victim under the age of 13 years, which is defined by Nebraska Revised Statute
29-4001.01(1)(b). Therefore, [Lopez] is required to register under [SORA] on a quarterly
basis for the rest of his life.
Lopez primarily argues that he was not convicted of any crimes which require lifetime
registration under SORA. The State agrees with Lopez that the court erred in imposing a lifetime
SORA registration.
Neb. Rev. Stat. § 29-4005(1)(b)(iii) (Reissue 2016) states that the registration period is for
life “if the sex offender was convicted of a registrable offense under section 29-4003 punishable
by imprisonment for more than one year and was convicted of an aggravated offense or had a prior
sex offense conviction or has been determined to be a lifetime registrant in another [jurisdiction].”
The registration period is 15 years “if the sex offender was convicted of a registrable offense under
section 29-4003 not punishable by imprisonment for more than one year.” § 29-4005(1)(b)(i).
Lopez was convicted of third degree sexual assault, pursuant to § 28-320, which is a
registrable offense under Neb. Rev. Stat. § 29-4003 (Cum. Supp. 2020), specifically
§ 29-4003(1)(a)(i)(C). Lopez does not dispute that his third degree sexual assault conviction is a
registrable offense. However, it was a Class I misdemeanor that was not punishable by more than
1 year’s imprisonment as is required for lifetime registration. See § 28-106. Accordingly, even if
the trial court found that Lopez committed an aggravated offense, his third degree sexual assault
conviction does not make him subject to lifetime registration. Rather, his third degree assault
conviction requires a 15-year registration period.
Regarding Lopez’ convictions for intentional child abuse, no serious bodily injury, these
were based on § 28-707(1)(a), (b), or (c), which states:
(1) A person commits child abuse if he or she knowingly, intentionally, or negligently
causes or permits a minor child to be: (a) Placed in a situation that endangers his or her life
or physical or mental health; (b) Cruelly confined or cruelly punished; (c) Deprived of
necessary food, clothing, shelter, or care.
Had the child abuse charges contained in the information, to which Lopez pled no contest, included
allegations under subsections (d) or (e) of § 28-707(1), the result would be different. However,
since it does not, the child abuse charges to which he pled are not registerable offenses under
§ 28-4003.
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We conclude Lopez was not convicted of any crimes which require lifetime registration
under SORA, and the trial court erred in ordering such requirement. Accordingly, we modify
Lopez’ SORA registration requirement to 15 years in accordance with § 29-4005(1)(b)(i).
CONCLUSION
Based on the reasons above, we affirm Lopez’ sentences of incarceration. His sentences of
post-release supervision are to run concurrently, and we modify his requirement to register under
SORA to 15 years.
AFFIRMED AS MODIFIED.
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