State v. Javins

255 N.W.2d 872 (1977) 199 Neb. 38

STATE of Nebraska, Appellee,
v.
Timothy J. JAVINS, Appellant.

No. 41111.

Supreme Court of Nebraska.

July 13, 1977.

George D. McArthur, Hastings, 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.

C. THOMAS WHITE, Justice.

The defendant plead guilty in the District Court to a violation of section 28-4-125(1)(a), R.R.S.1943, for unlawfully and knowingly delivering a controlled substance, to wit, marijuana. After a presentence investigation, the court sentenced the defendant to a term of from 1 to 2 years in the Nebraska Penal and Correctional Complex with credit of 6 days previously spent in the county jail. The defendant appeals.

The defendant assigns error in two general categories.

The record shows that on September 15, 1976, the judge stated to the defendant and counsel: "The presentence investigation report will probably not be ready for my examination for a week or two and when I receive the report and have an opportunity to inspect it I will notify your (defendant's) attorney and set up a date for your appearance here on sentencing * *." The record further shows that a sentencing hearing was set for October 4, 1976, and was rescheduled for October 13, 1976. Defendant's counsel was notified of the date set for sentencing and of the rescheduled date. Trial counsel for the defendant furnished an affidavit to the trial court that he did not examine the contents of the presentence investigation report prior to sentencing and had no opportunity therefore to comment on any errors in the report. The answer to the defendant's contention is stated in State v. Keller, 195 Neb. 209, 237 N.W.2d 410: "The obvious answer is that no request was made for an inspection of the report." The defendant cannot assert error in the failure to inspect a presentence investigation report when no demand was made for such inspection prior to sentence.

The second assignment of error is that the sentence is excessive. The presentence investigation report reveals that the defendant and one Steve Walton were roommates at Kearney State College in Kearney, Nebraska. On two separate occasions a cooperating individual went to their room and negotiated for a purchase of marijuana. On November 4, 1975, $150 was paid directly to Walton in the presence of Javins for 12 lids of marijuana. On November 11, 1975, the cooperating individual entered the Walton and Javins' room and purchased 4 lids of marijuana for $50 from Javins directly. Walton was present during the buy. Certain statements of Javins suggested to the cooperating individual that Javins and Walton were involved in dealing large amounts of marijuana in pound quantities and that they could secure any drug that the cooperating individual wished to purchase, especially marijuana and LSD. The presentence investigation report also disclosed that the defendant is in good physical health, is regularly employed, and has no prior criminal record or traffic offenses.

We note that the maximum sentence for a conviction of the crime for which the defendant is charged is 10 years in the Nebraska Penal and Correctional Complex. Our attention has been directed to the case and transcript of State v. Walton in the District Court for Buffalo County which has been included in the transcript of the Javins case. The defendant offered the case to this court as a related case and requested this court to take judicial notice of that case. We agree to do so.

The record discloses that on February 1, 1977, the defendant Walton was present in court and the county attorney moved the court to dismiss the felony information of distributing marijuana and requested permission of the court to file an amended information charging possession of marijuana of less than 1 pound, a misdemeanor. The court granted such permission. Walton thereupon plead guilty and was sentenced by the court to a term of 7 days in the county jail and ordered to pay a fine of $500 and costs of prosecution. The county attorney sought and obtained permission of the court for the dismissal of the felony charge as required by section 29-1606, R.R. S.1943. State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504. The trial court was aware of the differing treatment of the defendant and Walton.

We thus have a situation where two defendants appear to be equally involved in a scheme to distribute marijuana. The presentence investigation report of the defendant Javins discloses an absolutely clear record with all the indicia of probation. His sentence extends 1 to 2 years in the penal complex while Walton, his codefendant, received 7 days in the county jail and a fine of $500. The record is silent as to why the defendants received different treatments or why the court permitted the county attorney to withdraw the felony count and substitute the misdemeanor count as to Walton. There is nothing in the record to suggest that the defendant Javins would not be a fit subject for probation. We said in State v. Shonkwiler, 187 Neb. 747, 194 N.W.2d 172: "`A sentence not involving confinement is to be preferred to a sentence involving partial or total confinement in the absence of affirmative reasons to the contrary.' ABA Standards Relating to Sentencing Alternative and Procedures, Standard 2.3(c)."

This court has often said that it will not normally disturb a sentence on appeal imposed within the statutory limits absent an abuse of discretion. See State v. Westerlund, 197 Neb. 664, 250 N.W.2d 627. Nevertheless, where the defendant under review is shown to have no criminal record and the strong possibilities of rehabilitation, and where a codefendant whose record, although not before us, could not conceivably be any more favorable than that of the defendant, a sentence to the penal complex as opposed to a reduction in charges and a relatively mild sentence in the county jail indicates that an abuse of discretion occurred.

The sentence will be and the same is hereby vacated and the cause remanded to the District Court for resentencing. On resentence, the trial court is directed to set forth its reasons for differing dispositions in the event that the defendant is resentenced to a term in the penal complex.

REVERSED AND REMANDED WITH DIRECTIONS.