State v. McKenney

254 N.W.2d 81 (1977) 198 Neb. 564

STATE of Nebraska, Appellee,
v.
Vernon McKENNEY, Appellant,
Impleaded with Bradley T. Olson, Appellee.

No. 41102.

Supreme Court of Nebraska.

May 25, 1977.

Keith N. Bystrom, Public Defender of Lincoln County, and Scott P. Helvie, North Platte, for appellant.

Paul L. Douglas, Atty. Gen., Judy K. Hoffman, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

McCOWN, Justice.

The defendant pleaded guilty to possession of marijuana with intent to deliver and was sentenced to 6 months in the county jail. The defendant appeals on the ground that he should have been granted probation.

The defendant and a codefendant were both arrested and charged with possession of marijuana with intent to deliver. The officers found 18 pounds of marijuana in the defendant's luggage. Admittedly defendant intended to sell the marijuana. Both individuals claimed the other was the prime instigator. Both pleaded guilty. Both received the same sentence.

The penalty for possession of marijuana with intent to deliver is imprisonment in the Penal and Correctional Complex for not less than 1 year nor more than 5 years, or a fine of not more than $2,000, or imprisonment in the county jail for not more than 6 months, or both such fine and imprisonment. The defendant contends that it was an abuse of discretion to refuse to grant him probation because of his age and the fact that this was his first felony offense and was a nonviolent one.

The defendant is 26 years old, single, and is a high school graduate. He has no prior felony record. His presentence report reveals only minor misdemeanors and traffic offenses. The defendant was a drug user as well as a seller. The probation officer, for that reason, believed he would have difficulty completing the terms of any probation and recommended against it.

The record establishes that the District Court specifically considered the mitigating factors, as well as the fact that the sale of controlled substances was involved, and determined that some imprisonment was appropriate. The record fully supports the determination made by the District Court. A sentence imposed within statutory limits will not be disturbed on appeal unless there is an abuse of discretion. State v. Wounded Head, 198 Neb. 58, 251 N.W.2d 668.

The judgment is affirmed.

AFFIRMED.