State v. Knecht ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. KNECHT
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.
ANDREA M. KNECHT, APPELLANT.
Filed February 9, 2021. No. A-20-314.
Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.
Mallory N. Hughes, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
MOORE, BISHOP, and WELCH, Judges.
BISHOP, Judge.
INTRODUCTION
Andrea M. Knecht pled no contest to one count of sexual assault in the first degree. The
Douglas County District Court sentenced her to 20 to 30 years’ imprisonment. Knecht claims the
district court abused its discretion in rendering its sentence 1 day prior to the sentencing hearing,
as evidenced by the date contained on the court’s commitment order (mittimus). She contends this
deprived her of an opportunity for allocution. She also claims the court imposed an excessive
sentence. We affirm.
BACKGROUND
On July 12, 2019, the State filed an information charging Knecht with one count of sexual
assault on a child in the first degree, a Class IB felony, pursuant to Neb. Rev. Stat.
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§ 28-319.01(1)(b) (Reissue 2016). The events resulting in this charge occurred in the first half of
2013.
At a hearing held on January 31, 2020, the State requested leave to file an amended
information charging Knecht with one count of first degree sexual assault, a Class II felony,
pursuant to Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2016). Following the court’s receipt of the
amended information, Knecht pled no contest to the charge of first degree sexual assault set forth
in the amended information. According to the factual basis provided by the State,
on March 1st, 2019, the victim of this case, “KG,” was interviewed regarding some
allegations that had been reported to the Omaha Police Department. During that interview,
“KG” reported that in 2013, when she was a 14-year-old student at [named] High School,
this defendant, Andrea Knecht, was her high school basketball coach. The defendant was
27 years old at that time. And between January and May of 2013, the defendant subjected
“KG” to oral and digital penetration in the defendant’s vehicle and in the victim’s home.
Phone records were gathered which shows [sic] hundreds of calls between the
victim and the defendant during that time period ongoing until the victim’s parents reported
their concerns to the school and the school told the defendant to stop contacting the victim.
The defendant then, according to reports, bought the victim a burner phone to continue
their contact. The police also were able to obtain e-mails between the defendant and victim
during that time period. In many of those . . . , the defendant and victim are discussing their
relationship. The defendant is indicating that she is in love with the victim and they are
discussing sexual acts.
These events occurred here in Douglas County. The defendant was 27, and the
victim was 14 years old at the time.
The district court accepted Knecht’s no contest plea to the charge and found her guilty of the same.
The case was then set for sentencing.
After a sentencing hearing held “via Webex” on April 16, 2020, the district court sentenced
Knecht by oral pronouncement to 20 to 30 years’ imprisonment, with credit for 2 days already
served. On the same day, the court entered a sentencing order consistent with its oral
pronouncement.
ASSIGNMENTS OF ERROR
Knecht assigns, restated, that the district court erred in (1) rendering its sentence 1 day
prior to the sentencing hearing as indicated by the date of the mittimus, thus denying Knecht’s
right to allocution; and (2) imposing an excessive sentence that was arbitrary and capricious.
STANDARD OF REVIEW
A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion by the trial court. State v. Gray, 307 Neb. 418, 949 N.W.2d 320(2020). 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.-2-
ANALYSIS
MITTIMUS AND ALLOCUTION
Knecht contends the district court abused its discretion by rendering Knecht’s sentence one
day prior to the sentencing hearing. She directs us to the court’s mittimus order dated April 15,
2020, which was the day before the April 16 sentencing hearing and entry of the sentencing order.
The mittimus reflects a sentence of “20-30 YEARS.” Although the mittimus is not file-stamped
until April 16, Knecht claims the file-stamp date is “irrelevant” and argues that the mittimus shows
the district court determined a sentence of 20 to 30 years’ imprisonment the day before sentencing
and thus denied Knecht her right to allocution. Brief for appellant at 13. The State responds that
the “mittimus is not part of the district court’s judgment,” but, rather, “a separate order of
commitment that results from the court’s judgment.” Brief for appellee at 6. The State further
contends that the date on the mittimus was “clearly a typographical error.” Id.Whether the April 15, 2020, date on the mittimus was a typographical error or not, that
document was not filed by the district court until April 16. Thus, even if the court had contemplated
a sentence of 20 to 30 years’ imprisonment the day prior to the sentencing hearing, the question is
whether Knecht was provided an opportunity for allocution before the court entered its final
sentencing judgment on April 16.
Allocution is an unsworn statement from a convicted defendant to the sentencing judge or
jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime,
or say anything else in an effort to lessen the impending sentence. State v. Pereira, 284 Neb. 982,
824 N.W.2d 706 (2013). In Nebraska, allocution is statutorily required by Neb. Rev. Stat.
§ 29-2201 (Reissue 2016). See State v. Pereira, supra. Section 29-2201 provides that before a
sentence is pronounced, the defendant must be informed by the court of the verdict and asked
whether he or she has anything to say as to why the judgment should not be passed against him or
her. See, § 29-2201; State v. Pereira, supra. The most practical rationale underlying allocution is
that it provides an opportunity for the offender and defense counsel to contest any disputed factual
basis for the sentence. State v. Pereira, supra. It is also an opportunity for the defendant “‘to
present countervailing information, and to test, question, or refute the relevance of information on
which the judge may rely in determining the sentence to be imposed.’” State v. Pereira, 284 Neb.
at 985, 824 N.W.2d at 710 (quoting State v. Barker, 231 Neb. 430, 436 N.W.2d 520 (1989)).
The sentencing hearing took place “via Webex” on April 16, 2020. At that time, Knecht’s
counsel offered to the district court a sentencing memorandum and accompanying exhibits 1
through 15. Defense counsel asked that the sentencing memorandum be incorporated into the
presentence investigation report (PSR) and that the court receive the exhibits “for purposes of []
allocution.” The court received the exhibits. Knecht contends the district court “ignored and failed
to review” that memorandum and exhibits, which constituted Knecht’s written allocution. Brief
for appellant at 13. She suggests that the court could not have reviewed the sentencing
memorandum and the 15 exhibits since the memorandum was not incorporated into the PSR, nor
were the exhibits received, until the time of sentencing.
However, as pointed out by the State, those documents “were provided to the district court
prior to the hearing, which was conducted by Webex,” and the “court could not have received
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exhibits that it did not possess[].” Brief for appellee at 6. In other words, these documents would
have all been in the court’s possession and available for review prior to the sentencing hearing.
The State further notes, “The fact that the district court did not specifically mention those items
prior to imposing sentence does not mean that it failed to consider them.” Id.Importantly, in addition to receiving the documents submitted by Knecht as her written
allocution, the district court also asked whether there were “any remarks that [Knecht’s counsel]
or [Knecht] would like to make.” In response, Knecht’s counsel addressed the court at length,
filling approximately 4 pages in the bill of exceptions. Defense counsel emphasized that the results
and scores contained in the PSR indicated that Knecht was “a very low risk individual.” Defense
counsel described that Knecht was “a married mother of a one-year-old son with no other criminal
history whatsoever” who “has lived not just a law-abiding, but a productive[,] . . . generous[,] . . .
[and] empathetic life.” Counsel directed the court’s attention to the letters and reports offered at
the sentencing hearing detailing Knecht’s character and expert opinions concerning Knecht’s low
risk to reoffend and the appropriateness of probation. Counsel stressed that Knecht’s lost
employment and status as a “lifetime felon” and “registered sex offender for the next 25 years”
could not be “overlooked” as “significant consequences” that Knecht would face in addition to the
court’s sentence. Counsel further described that there was “no number of days, months, or
decades” the court could sentence Knecht to that would “undo[]” the circumstances the victim “has
gone through and continues to go through.” Emphasizing the goal of rehabilitation and that Knecht
had taken responsibility for her actions, counsel requested the court to sentence Knecht to
probation.
Knecht also personally addressed the court, stating, “I’m extremely sorry for the pain that
I may have caused [K.G.] and her family. And as the adult, I take full responsibility for my mistake
and actions.”
Based on the record before us, and regardless of whether the mittimus date was a
typographical error, we cannot say that the district court denied Knecht her right to allocution. The
bill of exceptions reflects that the documents constituting Knecht’s written allocution were in the
court’s possession at the time of the video conference sentencing hearing on April 16, 2020, at
which time they were formally received. Further, both Knecht and her counsel had the opportunity
to speak directly to the court at the sentencing hearing. While Knecht’s counsel did not delve into
the particulars of every exhibit offered to the court, she affirmed their content concerning Knecht’s
character and the appropriateness of a sentence of probation. Knecht had the opportunity to test,
question, or refute the relevance of information on which the judge might rely in determining the
sentence to be imposed. See State v. Pereira, supra. And, it was only after Knecht had her
opportunity for allocution that the court determined and ordered its final sentencing judgment.
EXCESSIVE SENTENCE
Knecht was convicted of one count of first degree sexual assault, a Class II felony, pursuant
to § 28-319. The Class II felony was punishable by 1 to 50 years’ imprisonment. See Neb. Rev.
Stat. § 28-105 (Cum. Supp. 2020). Knecht, age 34 at the time of sentencing, was sentenced to 20
to 30 years’ imprisonment. Her sentence was within the statutory range.
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A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion by the trial court. State v. Gray, 307 Neb. 418, 949 N.W.2d 320(2020). 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. 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. State v. Williams, 306 Neb. 261, 945
N.W.2d 124 (2020). 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. Id.In addition to the allocution provided by Knecht and her counsel as set forth previously,
K.G. and her mother also participated in the sentencing hearing. K.G.’s mother told the district
court that Knecht’s actions “devastated” her family and “destroyed [her] daughter.” She claimed
the “exuberant, extraverted, happy, over-achieving daughter [was] gone,” and “[i]n her place we
now have a fragile victim who’s in a constant state of anxiety and PTSD.” She said “[o]ur normal
family life is gone,” and “[w]e are constantly walking on eggshells, afraid we might say or do
something to upset [K.G.] or inadvertently hurt her feelings or set her back.” She spoke of having
K.G. in therapy since high school. K.G.’s mother asked the court to sentence Knecht to the
maximum penalty allowed, noting that Knecht “lied to us and she manipulated us.”
The State also pointed out that Knecht was a coach and authority figure “who is held to a
standard above even other adults.” “These are the people that we trust our children to every day[,]”
and Knecht “took advantage of that trust.” The State also noted that when Knecht had been
confronted about the “wrongfulness of her actions” at the time, “instead of stopping it, [she] took
actions to avoid being caught,” giving K.G. “a phone that looked exactly like her other phone that
she could use when her parents had blocked this woman from [K.G.’s] contacts[.]”
According to the PSR prepared by a senior probation officer, Knecht is married and has
one child. She has a bachelor’s degree and was employed as a sales associate with a company prior
to this case. She has no prior criminal history other than minor traffic infractions.
A “Level of Service/Case Management Inventory” was conducted as part of the PSR. This
instrument determines the degree of risk the offender presents to the community and the risk to
recidivate. Knecht scored in the “medium risk range” for the criminogenic risk factor domains for
education/employment, leisure/recreation, and antisocial pattern. She scored in the “low risk
range” for the domain of procriminal attitude/orientation. She further scored in the “very low risk
range” for the domains of criminal history, family/marital, companions, and alcohol/drug
problems. Knecht was also administered the Substance Abuse Questionnaire, and she scored in
the “maximum risk range” for stress coping and in the “medium risk range” for truthfulness and
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antisocial. Overall, Knecht “scored an 8 on the LS/CMI,” which placed her in the “low risk
category.”
The probation officer acknowledged that “[o]n the surface [Knecht] appears to be an
appropriate candidate for probation[] because of her lack of a criminal history, lack of drug and
alcohol abuse and for the most part prosocial lifestyle. However, the ongoing and lifelong effects
of her behavior on the victim are clearly articulated by the victim’s mother.” The probation officer
further stated: “This is a case that clearly demonstrates that actions have consequences. A sentence
of probation would be considered excessively lenient because it does not appropriately reflect the
serious nature and circumstances of the offense.” A straight sentence of incarceration was
recommended “to promote accountability for [Knecht’s] actions.”
The district court stated that it had reviewed “the probation file, including the police reports
and the Presentence Investigation, as well as the attachments, including the psychological
evaluations.” The court further stated that it had considered the relevant sentencing factors. The
court found Knecht was not an appropriate candidate for probation and sentenced Knecht to 20 to
30 years’ imprisonment, noting that if she lost no good time, she would be eligible for parole after
10 years, and subject to mandatory release after 15 years.
Knecht asserts the district court erred when it “considered none of the [sentencing] factors”
described in Nebraska law and “failed to even review, let alone consider” the evidence offered to
the court that “strongly suggest[ed] a sentence to probation.” Brief for appellant at 16. Knecht
describes such evidence as including letters by third parties concerning her character and the
opinions of experts regarding her risk of reoffending and the propriety of probation.
It is true that the district court did not specifically address the details underlying its
sentencing decision. The district court stated that it had considered Knecht’s “age, mentality, . . .
education, . . . experience, . . . cultural background, . . . lack of past criminal record, . . . law-abiding
behavior, motivation for the offense, and the nature of the offense” in determining her sentence.
The court also stated it had reviewed the “probation file” which included the PSR and
accompanying attachments. Knecht suggests that the court abused its discretion by failing to
review her sentencing memorandum and exhibits 1 through 15, apparently because the court failed
to specifically reference those documents when sentencing her. However, a sentencing court is not
required to make specific factual findings to justify the sentence imposed. See State v. Rogers, 297
Neb. 265, 899 N.W.2d 626 (2017) (no evidence district court failed to consider appropriate factors;
court not required to make specific factual findings to justify sentence imposed).
The fact that Knecht has led a law-abiding life since her wrongful behavior took place back
in 2013 certainly weighs in favor of a lighter sentence or perhaps even probation, as noted in the
PSR. However, it appears the district court agreed with the probation officer’s ultimate
recommendation of a straight sentence due to the serious nature of the offense. As pointed out by
the State, Knecht was a coach and authority figure, and was therefore someone who parents should
be able to trust with their children. Knecht took advantage of her position of trust, and she also
failed to cease her wrongful behavior when initially confronted about it back in 2013. And while
Knecht expressed remorse for her actions and we agree with her that factors exist which would
ordinarily favor probation, our review of a sentencing order is limited to an abuse of discretion
standard. And because the appropriateness of a sentence is necessarily a subjective judgment and
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includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life, a sentencing court is accorded very wide
discretion in imposing a sentence. State v. Rogers, supra.Having considered the relevant sentencing factors, including the nature of Knecht’s offense
and her individual situation, as well as the record before us which includes the exhibits offered by
Knecht at the sentencing hearing, we cannot say that Knecht’s sentence of 20 to 30 years’
imprisonment was an abuse of the district court’s discretion.
CONCLUSION
For the reasons stated above, we affirm the sentence imposed by the district court.
AFFIRMED.
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