State v. Seaman ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2020 09:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. SEAMAN
Cite as 28 Neb. Ct. App. 667
State of Nebraska, appellee, v.
Daniel R. Seaman, appellant.
___ N.W.2d ___
Filed July 28, 2020. Nos. A-19-746, A-19-747.
1. Constitutional Law: Due Process. The determination of whether pro-
cedures afforded an individual comport with constitutional requirements
for procedural due process presents a question of law.
2. Judgments: Appeal and Error. When dispositive issues on appeal pre­
sent questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
3. Courts. Termination from a drug court program is a matter entrusted to
the discretion of the trial court.
4. 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.
5. 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.
6. Judgments: Words and Phrases. Abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
7. Courts: Probation and Parole: Due Process. Drug court program
participants are entitled to the same due process protections as persons
facing termination of parole or probation.
8. Probation and Parole: Due Process. At a hearing to determine revoca-
tion of parole or probation, the following minimum due process protec-
tions apply: (1) written notice of the time and place of the hearing; (2)
disclosure of evidence; (3) a neutral factfinding body or person, who
should not be the officer directly involved in making recommendations;
(4) opportunity to be heard in person and to present witnesses and
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Cite as 28 Neb. Ct. App. 667
documentary evidence; (5) the right to cross-examine adverse witnesses,
unless the hearing officer determines that an informant would be sub-
jected to risk of harm if his or her identity were disclosed or unless the
officer otherwise specifically finds good cause for not allowing confron-
tation; and (6) a written statement by the fact finder as to the evidence
relied on and the reasons for revoking the conditional liberty.
9. Probation and Parole: Due Process: Evidence. A parole or probation
revocation hearing is not a criminal prosecution, and the process should
be flexible enough to consider evidence including letters, affidavits,
and other material that would not be admissible in an adversary crimi-
nal trial.
10. Courts: Probation and Parole: Evidence: Witnesses. Despite the flex-
ible standard for drug court program termination and parole or probation
revocation hearings which allows the consideration of hearsay evidence
inadmissible under the rules of evidence, absent a showing of good
cause, the drug court participant, parolee, or probationer has the right
to confront adverse witnesses with personal knowledge of the evidence
upon which the termination or revocation is based.
11. Courts: Proof. In drug court termination proceedings, the State bears
the burden of proving, by a preponderance of the evidence, the alleged
grounds for termination.
12. Evidence: Words and Phrases. A preponderance of the evidence is the
equivalent of the greater weight of the evidence.
13. Sentences: Appeal and Error. 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 con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
14. Sentences. 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 back-
ground, (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.
The sentencing court is not limited to any mathematically applied set
of factors.
15. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment 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.
Appeals from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
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STATE v. SEAMAN
Cite as 28 Neb. Ct. App. 667
Jonathan M. Frazer, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Moore, Chief Judge, and Arterburn and Welch, Judges.
Moore, Chief Judge.
INTRODUCTION
Following Daniel R. Seaman’s plea-based convictions in two
separate cases in the district court for Lancaster County—case
No. A-19-746 (the first burglary case) and case No. A-19-747
(the second burglary case)—the court transferred both cases
to a drug court program in lieu of sentencing at that time.
The court subsequently terminated Seaman’s participation in
the program and sentenced him on the underlying convic-
tions. Seaman appeals, asserting that the court terminated him
from drug court participation without due process, improperly
received certain evidence, erred in finding sufficient evidence
to terminate his participation in the drug court program, and
imposed excessive sentences in both cases. The cases have
since been consolidated for briefing and disposition by this
court. For the reasons set forth herein, we affirm.
BACKGROUND
The First Burglary Case.
In the first burglary case, the State filed an amended infor-
mation, charging Seaman with two counts of burglary in viola-
tion of Neb. Rev. Stat. § 28-507 (Reissue 2016), Class IIA felo-
nies; one count of criminal possession of a financial transaction
device, two or three devices, in violation of Neb. Rev. Stat.
§ 28-621(3) (Reissue 2016), a Class IV felony; and theft by
unlawful taking, $5,000 or more, in violation of Neb. Rev. Stat.
§§ 28-511 and 28-518(1) (Reissue 2016), a Class IIA felony.
A plea hearing was held on October 16, 2018, and Seaman’s
attorney informed the district court that while there was no
plea agreement, Seaman was eligible to and intended to par-
ticipate in the drug court program in both cases. Seaman pled
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guilty to all the charges of the amended information in the first
burglary case. The factual basis provided by the State indicates
that in April 2018, Seaman was involved in the theft and use
of financial transaction devices and a vehicle that were taken
during two residential break-ins.
The district court accepted Seaman’s pleas and found him
guilty of the charges in the first burglary case. At a subsequent
hearing, Seaman signed a drug court bond after having been
formally accepted into the drug court program.
The Second Burglary Case.
In the second burglary case, the State filed an amended
information, charging Seaman with three counts of burglary in
violation of § 28-507, Class IIA felonies; one count of theft by
unlawful taking, $5,000 or more, in violation of §§ 28-511 and
28-518(1), a Class IIA felony; and one count of first offense
resisting arrest in violation of Neb. Rev. Stat. § 28-904(1)
(Reissue 2016), a Class I misdemeanor.
At the October 16, 2018, plea hearing, Seaman pled guilty to
all the charges of the amended information in the second bur-
glary case. The events recited by the State in the factual basis
for that case show that in July 2018, Seaman was involved in
the theft of a vehicle and various items of personal property
from three different garages. Police officers were called to one
of the locations while Seaman and another individual were in a
garage removing items. The two men ran from the officers, and
Seaman engaged in a struggle with one of the officers before
being arrested.
As with the first burglary case, the district court accepted
Seaman’s pleas in the second burglary case, finding him guilty
of the charges, and Seaman signed a drug court bond at a later
hearing.
Drug Court Violation in Both Cases.
The State filed alleged drug court violations in both cases,
and a termination hearing was held before the district court on
April 24, 2019. The State presented testimony from Seaman’s
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drug court supervision officer, and the court received various
exhibits offered by the State. Seaman offered testimony from
his mother and also testified in his own behalf.
Jesseca Doetker-Parker (Parker) had been ­supervising
Seaman in the drug court program since October 2018.
According to Parker, the drug court violations had been filed
against Seaman because he had been cited for assault, had not
answered all the questions of his supervision officer honestly,
had resided or stayed in a place not approved by the drug court,
and had not followed the rules of the drug court handbook.
Parker testified that on March 13, 2019, Seaman notified her
that he had been cited for assault. Seaman also told Parker that
he was going to the victim’s house to get the victim “to tell the
truth,” and Parker told him not to do so. Seaman objected to
the State’s offer of the police reports for the assault investiga-
tion, which were reviewed by Parker in her assessment of the
matter. Seaman’s attorney argued that the reports were hearsay
within hearsay if offered for the truth stated therein. He stated,
however, that he would not object if the reports were being
offered for the limited purpose of their effect on Parker and
her decision to proceed with the drug court violation. The State
argued that while the reports were something Parker consid-
ered, the State was also offering them for the truth, because
the rules of evidence do not apply at a drug court violation
hearing. The district court overruled Seaman’s objection and
received the reports.
Seaman also objected to the State’s offer of photographs of
the injuries of the assault victim on the basis of foundation.
During voir dire by Seaman’s attorney, Parker stated that she
was not familiar with the victim, did not take the photographs,
and did not know who took them. Upon further questioning by
the State, Parker testified that she thought she had received the
photographs from the police, that she understood them to be
photographs taken as part of the assault investigation, and that
she had reviewed and considered them prior to the drug court
violation hearing. Seaman made the same objection when the
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Cite as 28 Neb. Ct. App. 667
State reoffered the photographs, but the district court overruled
the objection. The court also received another exhibit, without
objection, showing the mapped area of where the assault was
alleged to have occurred.
Parker spoke with Seaman the day after the assault, and
Seaman completed a written statement, which statement was
received into evidence. In the statement, Seaman detailed his
whereabouts on the day in question, asserted that his mother
dropped him off at work at a particular time, and denied
assaulting anyone.
Parker also testified about text messages and other infor-
mation from Seaman’s cell phone relevant to the drug court
violations. On March 26, 2019, Parker found text messages on
Seaman’s phone, indicating that he was using “mushrooms”
and “acid” and mentioning that these are substances for which
the drug court does not test. The recipient of these messages
was reportedly a coworker of Seaman’s, and some of her
responses via text and/or on a social media application showed
“large amounts of marijuana.” Parker also found text messages
showing Seaman’s contact with people whom he was not sup-
posed to have contact, and she found evidence that Seaman
had deleted someone from a social media application on his
phone. According to Parker, Seaman was not allowed to delete
anything from his phone. One of the people Seaman was con-
tacting was his child’s mother, who was actively using drugs.
He was also contacting his child’s grandmother, whom he had
been told previously to stop contacting after it was discovered
that she was also actively using drugs. Because Seaman’s child
was residing with the grandmother, Parker spoke to Seaman
about “having a third party make those exchanges.” Parker
also found evidence that Seaman was contacting the victim of
the assault, after he had been told not to on several occasions,
including by the drug court judge.
Parker also testified about the allegations of Seaman’s not
answering her questions truthfully and residing in an unap-
proved location. Parker testified that when she examined
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STATE v. SEAMAN
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Seaman’s phone during a meeting, she asked him about a
certain phone number. Seaman initially told her that the num-
ber belonged to his child’s grandmother, but he eventually
admitted that it belonged to the child’s mother. Parker also
testified that although Seaman was not approved to live with
the grandmother, and had been told that he was not allowed to
do so, certain messages on his phone suggested that he would
go to the grandmother’s after checking in at his approved resi-
dence. When Parker inquired, Seaman told her that he would
go to the grandmother’s residence after work, but he denied
living there.
The district court received a copy of the handbook for
the drug court program, as well as a written statement from
Seaman that Parker asked him to make after she went through
his phone and found “several violations.” Parker testified that
drug court participants received the handbook, which explains
the expectations for the program, “at intake” and that they “go
over it” during orientation. Participants are also given a quiz
to verify their understanding of the program. The handbook
contains rules regarding the progressive sanctions that may
be imposed for violations of the bond conditions. According
to Parker, Seaman violated the handbook rule that he was
not to delete anything off of his phone, and she testified fur-
ther about the text messages she found and Seaman’s contact
with prohibited individuals, including the assault victim. In
Seaman’s statement, he admitted to having been “dishonest
about a few things,” such as his contact with the individ­uals
discussed above. He denied having used any illegal drugs
or alcohol since his relapse with alcohol that occurred in
December 2018 and claimed that his text message about drug
use was “just another lie to try & sound cool & get something
from this person.” As to the assault citation, Seaman stated
that he “did not bager [sic] a witness or anything” and that
“[the assault victim] is doing it all on his own free will with
zero influence threats or anything from me except me ask-
ing the truth from him.” Seaman also indicated that stopping
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contact with the mother of his child was more difficult for him
than quitting drugs, and he expressed his desire to continue in
the drug court program.
Parker described the five phases of the drug court program.
Seaman was currently in the second phase, which requires drug
testing. Parker testified that Seaman’s tests had been clean,
except for his alcohol relapse in December 2018. She veri-
fied that the drug court program does not test for mushrooms
and acid, the substances referenced in one of Seaman’s text
messages.
Parker testified about the various sanctions Seaman had
received while in the drug court program, including daily
check-ins, community service, jail, and “jury room dumping
urine.” Parker testified that there were no sanctions typically
used by the drug court program that Seaman had not received.
She described the treatment and programming received by
Seaman while in the program and noted that the only thing he
had not received was residential treatment, which had not been
recommended for him by his treatment provider. Copies of
drug court supervision’s case notes and documentation of the
sanctions for previous violations received by Seaman while in
the program were received into evidence, as well as a copy of
the drug court program’s graduated sanctions.
Parker confirmed that drug court supervision was request-
ing Seaman’s termination from the program for having con-
tinued contact with active drug users and the assault victim,
continued dishonesty, the new law violation, and the fact that
Seaman had already received “every sanction.” Parker con-
firmed that Seaman denied committing the assault, but she
testified that even if the assault was not considered, drug court
supervision would still be asking for Seaman’s termination
from the program given his other violations.
Seaman presented the testimony of his mother, who testified
about her interactions with Seaman on the day of the assault,
including dropping him off at work at a particular time. In his
own testimony, Seaman denied using acid and mushrooms,
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stating that he had sent that particular message to “sound cool”
and “kind of get in relationship with this girl.” He also denied
committing the assault. On cross-examination, Seaman admit-
ted that he did not tell drug court about his alcohol relapse and
that the relapse was discovered due to a positive test. He also
admitted lying about his contact with his child’s mother, hav-
ing contacted the grandmother after being told not to do so,
and having contact with another drug user. Finally, Seaman
admitted to deleting messages on his phone to hide the fact
that he was contacting an unapproved person and to responding
to a text message from the assault victim after being told not to
have contact with him.
Drug Court Termination and
Sentencing in Both Cases.
On April 29, 2019, the district court entered orders termi-
nating Seaman from the drug court program in both cases.
The court found that Seaman violated drug court conditions,
including stating in his text messages that he used acid and
mushrooms, promoting drug use, lying to supervision, having
contact with individuals that were not approved by supervi-
sion, staying at an unapproved residence, and not following the
direction of supervision and the drug court judge not to have
contact with the alleged assault victim. The court found that
Seaman did commit the assault alleged in the violation filed
by the State, but it stated that such a finding was unnecessary
to its determination of whether Seaman should be terminated
from the drug court program. The court noted that prior to the
State’s filing, Seaman had been sanctioned for numerous viola-
tions of the drug court bond and that he had failed to follow
the bond conditions on numerous occasions, including being
late for drug testing, missing drug tests and treatment, violat-
ing curfew, drinking, forging “AA cards,” having contact with
an unapproved person on several occasions, and having an
unapproved person inside “sober houses.” Based on all of the
evidence presented, the court concluded that the appropriate
sanction was termination from the drug court program.
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STATE v. SEAMAN
Cite as 28 Neb. Ct. App. 667
In the first burglary case, the district court sentenced Seaman
to imprisonment for 2 to 4 years for each burglary conviction;
for 1 to 2 years for criminal possession of a financial transac-
tion device, two or three devices; and for 2 to 4 years for theft
by unlawful taking, $5,000 or more. In the second burglary
case, the court sentenced Seaman to imprisonment for 2 to 4
years for each burglary conviction; for 2 to 4 years for theft by
unlawful taking, $5,000 or more; and for 6 months to 1 year
for first offense resisting arrest. The court ordered that the sen-
tences in both cases be served consecutively (to one another,
to the sentences imposed in the other case, and to any other
sentence previously imposed on Seaman).
ASSIGNMENTS OF ERROR
Seaman asserts that the district court erred in (1) terminat-
ing him from drug court participation without affording him
due process of law; (2) receiving evidence at the termination
hearing over valid hearsay and foundation objections, thereby
denying him the right to confront and cross-examine wit-
nesses against him; (3) finding sufficient evidence to terminate
him from the drug court program; and (4) imposing exces-
sive sentences.
STANDARD OF REVIEW
[1,2] The determination of whether procedures afforded an
individual comport with constitutional requirements for proce-
dural due process presents a question of law. State v. McCurry,
296 Neb. 40, 891 N.W.2d 663 (2017). When dispositive issues
on appeal present questions of law, an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision of the court below. State v. Valdez, 305 Neb. 441,
940 N.W.2d 840 (2020).
[3,4] The State cites State v. Johnson, 287 Neb. 190, 842
N.W.2d 63 (2014), as support for applying an abuse of dis-
cretion standard of review for an appellate court to use when
reviewing whether a trial court erred in finding sufficient evi-
dence to terminate an individual from a drug court program.
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Although Johnson involved a probation revocation proceeding,
we agree that an abuse of discretion standard is equally appli-
cable when reviewing termination from drug court participa-
tion. The Nebraska Supreme Court has previously applied case
law applicable to parole and probation revocation proceedings
in determining due process standards applicable in drug court
termination proceedings. See State v. Shambley, 281 Neb. 317,
795 N.W.2d 884 (2011). We determine that termination from a
drug court program is a matter entrusted to the discretion of the
trial court. A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. State v. Ettleman,
303 Neb. 581, 930 N.W.2d 538 (2019).
[5,6] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529
(2020). 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.
ANALYSIS
Due Process.
Seaman asserts that the district court erred in terminating
his participation in the drug court program without affording
him due process of law. He argues that the hearing held in this
case did not meet the minimum due process to which he was
entitled as set forth in State v. Shambley, supra, and that thus,
his procedural due process rights were violated.
[7,8] In Shambley, the Nebraska Supreme Court determined
that drug court program participants are entitled to the same
due process protections as persons facing termination of parole
or probation. At a hearing to determine revocation of parole
or probation, the following minimum due process protections
apply: (1) written notice of the time and place of the hearing;
(2) disclosure of evidence; (3) a neutral factfinding body or
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person, who should not be the officer directly involved in mak-
ing recommendations; (4) opportunity to be heard in person
and to present witnesses and documentary evidence; (5) the
right to cross-examine adverse witnesses, unless the hearing
officer determines that an informant would be subjected to
risk of harm if his or her identity were disclosed or unless the
officer otherwise specifically finds good cause for not allowing
confrontation; and (6) a written statement by the fact finder
as to the evidence relied on and the reasons for revoking the
conditional liberty. Id.
[9,10] A parole or probation revocation hearing is not
a criminal prosecution, and the process should be flexible
enough to consider evidence including letters, affidavits, and
other material that would not be admissible in an adversary
criminal trial. Id. Despite the flexible standard for drug court
program termination and parole or probation revocation hear-
ings which allows the consideration of hearsay evidence inad-
missible under the rules of evidence, absent a showing of good
cause, the drug court participant, parolee, or probationer has
the right to confront adverse witnesses with personal knowl-
edge of the evidence upon which the termination or revocation
is based. Id.
In State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011),
the Nebraska Supreme Court concluded that the hearing held
in that case did not comport with the minimum due process
standards to which drug court participants are entitled. There,
the defendant’s termination from the program was based on
hearsay documents—a letter from the drug court coordinator
with various attachments—the foundation and reliability of
which were not established. The Supreme Court found this evi-
dence insufficient to sustain the State’s burden of proof. And,
the court found that the State’s failure to present testimony
from any witnesses, whom the defendant could then cross-
examine with respect to the statements found in the documents
and the recommendation to terminate her from the program,
violated the defendant’s right to cross-examination. The court
determined that despite the flexibility to consider hearsay,
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where there were no adverse witnesses and no finding of good
cause to disallow cross-examination, the drug court denied the
defendant that right and thus deprived her of her right to pro-
cedural due process. The court also determined that the State
failed to meet its burden of proving the violations, noting that
“the sole reliance on hearsay evidence in parole and probation
hearings, especially when no findings of substantial reliability
are made, is generally considered a failure of proof.” Id. at 334,
795 N.W.2d at 897 (emphasis in original). The court stated,
“No lesser standard should be applied to drug court termina-
tion proceedings.” Id. The court observed that even though the
evidentiary rules are relaxed, it is inadvisable for a court to rely
solely on unsubstantiated hearsay. See id.
In this case, Seaman acknowledges that the State presented
testimony from Parker and that he had the opportunity to
cross-examine her, but he argues that his due process rights
were violated because the State also “offered police reports
from an unrelated matter, a criminal investigation with no
resolution and in fact no charging decision at the time of the
termination hearing” and because the reports were hearsay
and were not offered through the testimony of the person who
authored them. Brief for appellant in cases Nos. A-19-746 and
A-19-747 at 9. He also argues that the district court received
the police reports over his valid hearsay objections and that
he had no opportunity to confront the author of the reports
or the individuals who made the statements summarized in
the reports. Seaman argues that the State’s case relied heav-
ily upon the unsubstantiated hearsay allegations in the police
reports and the photographs of the victim of the alleged
assault, evidence which he alleges was largely rebutted by his
own evidence.
We disagree with Seaman’s assertion that the State’s case
relied heavily upon police reports and photographs of the
alleged assault. Regardless of whether the admission of the
reports and photographs violated due process, which we need
not decide, the State’s case did not rely solely upon this evi-
dence. Parker testified about multiple other violations and
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indicated that even if the assault were not considered, drug
court supervision would still be recommending Seaman’s ter-
mination from the program.
Evidentiary Rulings.
Seaman asserts that the district court erred in receiving evi-
dence at the termination hearing over valid hearsay and foun-
dation objections, thereby denying him the right to confront
and cross-examine witnesses against him. During the termina-
tion hearing, Seaman objected to the police reports on the basis
of hearsay and the photographs of the victim of the alleged
assault on the basis of foundation. On appeal, he argues that
the court erred in receiving these exhibits over his objec-
tions despite the relaxed evidentiary rules applicable in drug
court proceedings. He argues that if the State wanted to use
“evidence with . . . questionable admissibility,” he should
have been given the right to fully cross-examine the author
of the reports, the person who took the photographs, and “any
other persons on whose information the violations in this case
were based.” Brief for appellant in cases Nos. A-19-746 and
A-19-747 at 11. He argues that had his “procedural due process
rights been observed,” he would have successfully rebutted the
State’s evidence. Id.
Seaman’s evidentiary arguments are essentially the same as
his due process arguments discussed above. Assuming without
deciding that the admission of these exhibits was error, we
disregard these exhibits in our determination of whether the
evidence was sufficient to terminate Seaman’s participation in
drug court.
Sufficiency of Evidence as to
Drug Court Violation.
Seaman asserts that the district court erred in finding suf-
ficient evidence to terminate him from the drug court program.
[11,12] In drug court termination proceedings, the State
bears the burden of proving, by a preponderance of the evi-
dence, the alleged grounds for termination. State v. Shambley,
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281 Neb. 317, 795 N.W.2d 884 (2011). A preponderance of
the evidence is the equivalent of the greater weight of the evi-
dence. See In re Interest of Jeremy U. et al., 304 Neb. 734, 936
N.W.2d 733 (2020).
In each of these cases, the court entered a drug court bond
which set forth numerous conditions for Seaman’s participa-
tion in the drug court program. By his signature, Seaman
acknowledged that he received a copy of the bond and agreed
to abide by all the conditions set forth. Seaman also received
a copy of the drug court program handbook, which contained
detailed “Program Conditions” notifying participants that they
are expected to act in accordance with the listed conditions
at all times and that failure to comply with the conditions is
not merely a program violation but also a violation of the par-
ticipant’s bonds and may result in the filing of an alleged drug
court bond violation.
According to the alleged drug court violations filed by the
State in these cases, Seaman violated his bond conditions
of refraining from unlawful or disorderly conduct; truthfully
answering inquiries of the drug court supervision office, the
judge and other program personnel; residing in an approved
residence; and abiding by the rules of the drug court contained
in the handbook. The State’s allegations were based on the
alleged assault, Seaman’s untruthful responses with respect to
text messages on his phone and evidence on his phone show-
ing unapproved contacts, possible drug use not tested for by
the program, his residence in an unapproved location, and the
deletion of information from his phone.
At the hearing, Seaman’s drug court program supervisor
testified about each of these violations, and in his own tes-
timony, Seaman admitted that he did not tell the drug court
about his alcohol relapse; that he lied about having contact
with his child’s mother, having contacted the grandmother after
being told not to do so, and having contact with another
drug user; that he deleted messages on his phone to hide an
unapproved contact; and that he responded to a text message
from the assault victim after being told not to have contact
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with him. There was evidence about the sanctions Seaman
had already received for violations, including being late for
drug testing, missing treatment, violating curfew, drinking,
having an unapproved person in “sober houses,” and forging
“AA cards.”
Seaman focuses on the district court’s findings with respect
to the alleged assault, and he argues that if a portion of the
court’s order “could be based on so little evidence, evidence
of questionable admissibility and veracity, and evidence that
was rebutted, then the rest of the order should be viewed with
high scrutiny.” Brief for appellant in cases Nos. A-19-746
and A-19-747 at 12-13. However, the court clearly stated that
its finding with respect to the commission of the assault was
unnecessary to its determination of whether Seaman should be
terminated from drug court, and we agree that there was suf-
ficient evidence to terminate Seaman from the program without
consideration of the alleged assault. Although the court mistak-
enly made its findings beyond a reasonable doubt, we find the
evidence was clearly sufficient to meet the lower preponder-
ance or greater weight standard. The district court did not err in
finding sufficient evidence that Seaman violated the conditions
of his drug court bond.
Termination From Drug Court.
Seaman argues that termination from the drug court pro-
gram was not the appropriate remedy for his violation of drug
court conditions and that “there are other levels of sanctions
that could have been imposed by the drug court team short of
termination.” Brief for appellant in cases Nos. A-19-746 and
A-19-747 at 14.
By signing the drug court bond, Seaman acknowledged
that if it is alleged that he has violated any of the condi-
tions, “I can be immediately remanded to the custody of the
Lancaster County Department of Corrections . . . , my bond
can be revoked, and/or I can be terminated from drug court
and sentenced on the charges to which I entered pleas.” The
program handbook also notifies participants of a list of typical
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sanctions contained on a graduated sanctions matrix which par-
ticipants receive during intake and which are also posted in the
drug court office.
The evidence presented showed that Seaman violated numer-
ous drug court conditions contained in the bond and the hand-
book, took steps to conceal a violation, and continued to violate
the conditions after receiving multiple sanctions. The record
shows that the progressive sanctions provided in the matrix
were utilized in this case. Parker testified that there were no
sanctions typically used by the drug court program that Seaman
had not already received. She also testified that drug court
supervision would still be asking for Seaman’s termination
from the program even if the assault were not considered.
The district court did not abuse its discretion in finding that
the State had met its burden to prove the violations or in termi-
nating Seaman from the drug court program.
Excessive Sentences.
Seaman asserts that the district court abused its discre-
tion by imposing excessive sentences. Seaman was convicted
of seven Class IIA felonies (five counts of burglary and two
counts of theft by unlawful taking, $5,000 or more), and the
court imposed sentences of 2 to 4 years’ imprisonment for each
of these convictions. Class IIA felonies are punishable by a
maximum of 20 years’ imprisonment. There is no minimum.
See, Neb. Rev. Stat. § 28-105 (Cum. Supp. 2018); § 28-507;
§ 28-511; § 28-518. Seaman was sentenced to 1 to 2 years’
imprisonment for his conviction of criminal possession of a
financial transaction device, two or three devices, a Class IV
felony, and punishable by up to 2 years’ imprisonment and
12 months’ postrelease supervision, a $10,000 fine, or both;
there is no minimum term of imprisonment, but there is a
minimum of 9 months’ postrelease supervision if imprisonment
is imposed. § 28-105; § 28-621. However, Seaman was not
subject to the postrelease supervision portion of the sentence
that normally accompanies Class IV felonies, because he was
also sentenced to imprisonment for Class IIA felonies. See
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§ 28-105(6). Finally, the court imposed a sentence of imprison-
ment for 6 months to 1 year for Seaman’s conviction of first
offense resisting arrest, a Class I misdemeanor, punishable by
up to 1 year’s imprisonment, a $1,000 fine, or both. Neb. Rev.
Stat. § 28-106 (Reissue 2016); § 28-904. All of the sentences
imposed by the court were within the statutory limits.
[13-15] 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 discre-
tion in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474
(2020). In determining a sentence to be imposed, relevant fac-
tors 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. However, the
sentencing court is not limited to any mathematically applied
set of factors. State v. Manjikian, 303 Neb. 100, 927 N.W.2d
48 (2019). The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge’s obser-
vation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. State
v. Montoya, supra.
At the sentencing hearing, the district court observed that
Seaman needed to address the “element of criminal think-
ing . . . that creeps back in.” The court stated that Seaman’s
offenses were serious, in that he broke into and stole items
from private residences, where “everybody in society should
feel secure,” and it observed that the act of burglary, espe-
cially a residential burglary, is a serious invasion of pri-
vacy. The court stated it was imposing sentences with regard
for the nature and circumstances of the crimes, as well as
Seaman’s history, character, and condition. A review of the
level of service/case management inventory in the presentence
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investigation report completed prior to sentencing shows that
Seaman’s overall score of 32 placed him in the “very high” risk
category for recidivism.
The district court considered the appropriate factors and did
not abuse its discretion in sentencing Seaman.
CONCLUSION
The court did not abuse its discretion in finding sufficient
evidence to terminate Seaman’s participation in the drug court
program or in sentencing Seaman.
Affirmed.