State v. Rieger

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plain error in the juvenile court’s February 26 order finding
that reasonable efforts in support of reunification were no
longer required, that the primary permanency objective for
Jasmine was to be independent living, and that the primary
permanency objective for Samantha was to be guardianship
with a concurrent plan of adoption. Accordingly, we affirm the
court’s order.
Affirmed.
State of Nebraska, appellee, v.
Kaylene M. Rieger, appellant.
___ N.W.2d ___
Filed November 1, 2013. No. S-13-456.
1. 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 the 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.
2. Sentences: Probation and Parole. It is within the discretion of the trial court
whether to impose probation or incarceration.
3. ____: ____. When a court sentences a defendant to probation, it may impose any
conditions of probation that are authorized by statute.
4. ____: ____. Whether a condition of probation imposed by the sentencing court is
authorized by statute is a question of law.
5. Judgments: Words and Phrases. 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.
Appeal from the District Court for Sarpy County, Max
K elch, Judge, on appeal thereto from the County Court for
Sarpy County, Robert C. Wester, Judge. Sentence vacated in
part, and cause remanded with directions.
Liam K. Meehan, of Schirber & Wagner, L.L.P., for
appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
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STATE v. RIEGER 789
Cite as 286 Neb. 788
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Kaylene M. Rieger entered a guilty plea to one count of
false reporting. She was sentenced by the county court for
Sarpy County to probation for 18 months. As a condition
of probation, she was directed to have no contact with her
husband without the court’s permission. The district court
affirmed the sentence, and Rieger then perfected this timely
appeal. We conclude that the broad prohibition on Rieger’s
contact with her husband is an unreasonable infringement
upon Rieger’s fundamental rights arising from marriage
and an abuse of sentencing discretion. We therefore remand
for resentencing.
BACKGROUND
Rieger and Gavin Vreeland were married on August 25,
2012. At the time of the marriage, Rieger had two chil-
dren from previous relationships. In September 2012, police
received a report that her 5-year-old son had bruises on his
lower back. Rieger told officers that she had caused the bruis-
ing when she spanked the child. However, police officers
learned that the child told his grandmother that Vreeland had
spanked him and had caused the injuries. The child told police
officers that it was mostly Vreeland who spanked him and that
Vreeland spanked hard enough to make him cry. The child
appeared confused as to whether his mother told him to blame
the injuries on Vreeland or herself. Officers talked to Rieger
again, and she continued to accept responsibility for spanking
the child, but officers later spoke with Vreeland, who admitted
to causing the injuries.
Rieger was charged with one count of false reporting, a
Class I misdemeanor,1 and one count of tampering with a wit-
ness, a Class IV felony.2 She entered a guilty plea to the false
1
Neb. Rev. Stat. § 28-907 (Reissue 2008).
2
Neb. Rev. Stat. § 28-919 (Reissue 2008).
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reporting charge, and the other charge was dismissed by the
State. At the plea hearing, the court inquired whether there
was any pending juvenile proceeding, and Rieger responded
that there was not. Her counsel added that it was his under-
standing that the Department of Health and Human Services
(DHHS) had found the “abuse allegations” to be “unfounded.”
The court ordered a presentence investigation and scheduled a
sentencing hearing.
According to the presentence investigation report (PSR),
Rieger had no prior record other than traffic offenses. The PSR
indicated that Rieger and Vreeland were currently married and
that he was a “co-defendant in this present offense,” but the
PSR did not disclose the status or disposition of any charges
against him. The report disclosed that Rieger was disabled and
stated that she had been diagnosed with posttraumatic stress
disorder, chronic migraines, depression, hypertension, a stroke,
and a brain tumor. It noted that Vreeland was unemployed. The
probation officer made no sentencing recommendation, but
included several recommended conditions if the court decided
to place Rieger on probation. One of these recommendations
was that she “avoid social contact with persons having criminal
records,” but the report made no specific reference to future
contact with Vreeland.
At the sentencing hearing, Rieger stated that she and
Vreeland were still living in the same home. She stated that
Vreeland had been around her son since he was less than 1
year old and that she had never “seen [Vreeland] do anything
like this” previously. The prosecutor noted that according
to the PSR, Vreeland “admitted to spanking the kids in the
past and indicated that [Rieger] knew that.” The court again
inquired whether Rieger’s children were involved in juvenile
proceedings. Rieger’s counsel responded: “No. The DHHS
found that these allegations were unfounded, kept them in the
home, and then there are still criminal matters proceeding. I
believe . . . Vreeland had a child abuse charge against him
and she had the false reporting charge.” Later in the hearing,
the prosecutor advised the court that Vreeland had entered
a guilty plea to “child abuse” and Rieger stated that he was
awaiting sentencing.
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Cite as 286 Neb. 788
The county court told Rieger she could be placed on pro-
bation if she agreed to keep Vreeland out of the house while
she was on probation or she could go to jail for 15 days, in
which case, she would not receive some of her prescription
medications. After inquiring about the failure of Rieger’s rela-
tionships with the fathers of her children, the court stated: “So
you pick losers. . . . And . . . my guess is that’s related to you
feel so bad about yourself that . . . you’ll put up with someone
just so that they’ll be there.” The court further observed that
Rieger had “an instinctual way of finding a guy that’s kind of
at the bottom of the barrel that will put up with you and you
put up with him, and that’s the way it is.”
The court placed Rieger on probation for 18 months with
conditions, including completion of a psychological evalua-
tion, weekly individual counseling, and weekly attendance at a
women’s group. Rieger was also ordered to have “No contact
with . . . [V]reeland” without permission of the court. The court
said it would permit contact between Rieger and Vreeland only
if there was “some kind of intense therapeutic deal.”
Rieger appealed to the district court, which affirmed the
sentence. The district court found the no-contact condition
was reasonable because both the factual basis for the plea and
the PSR left unresolved the question of whether Vreeland had
committed child abuse. The court reasoned that the protection
of a young child superseded any relationship between Rieger
and Vreeland. Rieger filed this timely appeal. We moved
the appeal to our docket on our own motion pursuant to our
authority to regulate the caseloads of the appellate courts of
this state.3 It was submitted without oral argument pursuant to
Neb. Ct. R. App. P. § 2-111(E)(5)(a) (rev. 2008).
ASSIGNMENTS OF ERROR
Rieger assigns, restated and summarized, that the condition
of probation that she have no contact with Vreeland was an
abuse of discretion because it violated her fundamental rights
inherent in the marital relationship and was not reasonably
3
See, Neb. Rev. Stat. § 24-1106(3) (Reissue 2008); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2012).
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related to her rehabilitation. In addition, she contends that
the 18-month period of probation is excessive in light of her
minimal prior record.
STANDARD OF REVIEW
[1,2] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the 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.4 It is within the discretion of the trial court whether
to impose probation or incarceration.5
ANALYSIS
No-Contact Condition
[3,4] When a court sentences a defendant to probation, it
may impose any conditions of probation that are authorized by
statute.6 Whether a condition of probation imposed by the sen-
tencing court is authorized by statute is a question of law.7 The
applicable statute provides that “[w]hen a court sentences an
offender to probation, it shall attach such reasonable conditions
as it deems necessary or likely to insure that the offender will
lead a law-abiding life.”8 These include requiring the offender
to “meet his or her family responsibilities,”9 to “refrain from
frequenting unlawful or disreputable places or consorting with
disreputable persons,”10 and to “satisfy any other conditions
reasonably related to the rehabilitation of the offender.”11 We
construe these provisions to authorize a no-contact condition of
4
State v. Dixon, ante p. 334, ___ N.W.2d ___ (2013).
5
State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).
6
State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007); State v. Lobato,
259 Neb. 579, 611 N.W.2d 101 (2000).
7
State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010); State v. Lobato,
supra note 6.
8
Neb. Rev. Stat. § 29-2262(1) (Cum. Supp. 2012).
9
§ 29-2262(2)(c).
10
§ 29-2262(2)(h).
11
§ 29-2262(2)(r).
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probation when it is reasonable and necessary to the rehabilita-
tive goals of probation.
From our review of the record, it appears that the sentencing
judge imposed the no-contact condition as a means of requir-
ing Rieger to fulfill her parental responsibility to protect her
children from potential future harm. Rieger contends that the
no-contact condition must be subjected to heightened scru-
tiny because it affects the marital relationship, which the U.S.
Supreme Court has described as “one of the ‘basic civil rights
of man,’ fundamental to our very existence and survival.”12
Although we have not previously addressed this precise issue,
Rieger’s position is consistent with the analytical approach
taken by other jurisdictions.
For example, in Dawson v. State,13 an Alaska appellate court
invalidated a condition of probation which precluded contact
between the defendant and his wife, with whom he had been
involved in selling drugs. Alaska law required conditions of
probation to be reasonably related to the rehabilitation of the
offender and the protection of the public, and subjected condi-
tions which restricted constitutional rights to special scrutiny
to determine whether the restriction served those goals. The
Alaska court found that the spousal no-contact condition
“plainly implicate[d] the constitutional rights of privacy, lib-
erty and freedom of association.”14 It reasoned that while such
restrictions could be justified by case-specific circumstances,
“to avoid unnecessary intrusion on marital privacy, it [is]
appropriate to tailor a close fit between the scope of the order
restricting marital association and the specific needs of the
case at hand.”15 The court ultimately vacated the no-contact
provision upon determining it was not specifically tailored to
the circumstances and therefore was unduly restrictive of lib-
erty. However, it stated that the trial court, on remand, could
12
Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010
(1967), quoting Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L.
Ed. 2d 1655 (1942).
13
Dawson v. State, 894 P.2d 672 (Alaska App. 1995).
14
Id. at 680.
15
Id. at 681.
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in its discretion “consider the appropriateness of a more lim-
ited special condition.”16
Applying similar reasoning, the Supreme Court of Oregon
in State v. Martin17 set aside a condition of probation which
barred contact between a woman convicted of forgery and her
husband, who was also involved in the crime. The trial court
reasoned that the no-contact condition was justified because
the wife’s counsel had argued at sentencing that the husband
was largely to blame for her crimes and, thus, barring contact
was necessary for rehabilitation. The Oregon Supreme Court
stated that this “might have been sufficient to support a con-
dition of probation that defendant not associate with her for-
mer partner in crime, had that person not been her spouse.”18
But the court reasoned that “where fundamental rights are
involved the sentencing court has less discretion to impose
conditions in conflict therewith.”19 The court stated that the
sentencing court should have made more detailed factual find-
ings regarding any potential harm which could result from
marital contact and should consider whether “interference
with marital rights less than complete separation would serve
to protect society’s interests.”20
Also instructive is State v. Ancira.21 As a condition of proba-
tion, the defendant was required to have no contact with his
wife or his two minor children for 5 years. The sentencing
court stated that the order was necessary to protect the children,
who had witnessed an incident of domestic violence between
their parents. The appellate court reasoned that restriction of
the fundamental right of a parent to have contact with his chil-
dren could only be justified if reasonably necessary to prevent
harm to the children and that the total prohibition of any form
of contact had not been shown to be reasonably necessary to
16
Id.
17
State v. Martin, 282 Or. 583, 580 P.2d 536 (1978).
18
Id. at 589, 580 P.2d at 539.
19
Id. at 589, 580 P.2d at 540.
20
Id.
21
State v. Ancira, 107 Wash. App. 650, 27 P.3d 1246 (2001).
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protect the children. The court also noted that while some limi-
tations on the defendant’s visitation rights might be warranted,
the family and juvenile courts were better equipped to make
such determinations. It therefore struck the no-contact provi-
sion involving the defendant’s children.
Even courts which have upheld restrictions on contact with
spouses or children as a condition of probation recognize that
such restrictions must be subjected to greater scrutiny than no-
contact provisions involving unrelated persons. For example,
in People v. Jungers,22 a California court upheld a condition of
probation which prohibited a defendant convicted of a felony
involving domestic violence from initiating contact with the
victim, his wife. Noting that restrictions on constitutional
rights must be “carefully tailored and ‘reasonably related to
the compelling state interest’ in reforming and rehabilitating
the defendant,”23 the court reasoned that the condition “did
not impose a complete ban on association or marital privacy,
but only a narrowly tailored condition consistent with [the
defendant’s] rehabilitation and the safety of the victim.”24 The
court noted that the condition did not preclude the defendant
from participating in marital contacts, but only from initiating
such contacts, and was therefore a reasonable restriction which
did not interfere with the marital relationship to an impermis-
sible degree.
Likewise, in Commonwealth v. Lapointe,25 the Supreme
Judicial Court of Massachusetts upheld a condition of proba-
tion which prohibited the defendant, who had been convicted
of sexually assaulting his minor daughter, from residing in a
home with his victim or other minor children. Recognizing
that parental rights were constitutionally protected, the court
reasoned that “[i]n cases where a condition touches on con-
stitutional rights, the goals of probation ‘are best served if the
conditions of probation are tailored to address the particular
22
People v. Jungers, 127 Cal. App. 4th 698, 25 Cal. Rptr. 3d 873 (2005).
23
Id. at 704, 25 Cal. Rptr. 3d at 878.
24
Id. at 705, 25 Cal. Rptr. 3d at 879.
25
Commonwealth v. Lapointe, 435 Mass. 455, 759 N.E.2d 294 (2001).
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characteristics of the defendant and the crime.’”26 The court
concluded that the residency restriction was reasonably tailored
to the circumstances because the defendant had targeted minors
residing in his home and had used the family relationship to
perpetrate his abuse.
Although it did not involve a spousal no-contact provision,
this court’s opinion in State v. Morgan27 provides support for
Rieger’s argument that a no-contact provision which infringes
upon a fundamental right should be subjected to a higher degree
of scrutiny. At issue in Morgan was a condition of probation
which required the defendant, who had been convicted of sell-
ing marijuana, to submit to a search of his person or property
at any time during the probationary period, without probable
cause. The defendant challenged the search condition, alleg-
ing that it violated his Fourth Amendment rights. This court
stated that while “such conditions should be sparingly imposed
and should be reasonably related to the offense for which the
defendant was convicted,”28 they are valid and constitutional
“to the extent that they contribute to the rehabilitation process
and are done in a reasonable manner.”29 We conclude that the
same principles should apply to a condition of probation which
prohibits or restricts a probationer’s contact with a spouse and
that such a condition should be narrowly tailored and reason-
ably related to the rehabilitative process.
In considering whether a probation condition is narrowly
tailored and reasonably related to the goal of rehabilitation,
we consider both its purpose and scope. There is no indica-
tion in the record that the no-contact condition was necessary
to protect Rieger from Vreeland. Rather, as we have noted, it
appears that the condition was designed to protect Rieger’s
children from Vreeland. But the need for such protection is
unclear from the record. In response to questions from the
court prior to entry of the order of probation, Rieger’s counsel
26
Id. at 459, 759 N.W.2d at 298.
27
State v. Morgan, 206 Neb. 818, 295 N.W.2d 285 (1980).
28
Id. at 825, 295 N.W.2d at 288.
29
Id. at 827, 295 N.W.2d at 289.
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twice indicated that the State had declined to institute juve-
nile abuse and neglect proceedings. Although the prosecutor
advised the court that Vreeland had entered a guilty plea to
a “child abuse” charge, the record does not disclose whether
this was a misdemeanor charge of negligent child abuse or a
felony charge of knowing and intentional abuse.30 Nor does
the record disclose whether Vreeland had any prior record of
child abuse or assaultive behavior. And there is no evidence
that Vreeland was complicit in Rieger’s false reporting. When
police questioned Vreeland after receiving Rieger’s report, he
readily admitted that he had administered the spanking which
resulted in the bruising.
But even assuming that some protective measure was
required, the broad no-contact provision included in the order
of probation is not narrowly tailored to that purpose. It forbids
any form of contact between Rieger and Vreeland without
court permission, which the court indicated it would only
consider in connection with “some kind of intense therapeu-
tic deal.” We cannot discern from this record any reason that
a less restrictive condition, such as one permitting super-
vised contact in the presence of the children, unsupervised
contact without the children present, or telephone or e-mail
communication, would not have been sufficient to protect
Rieger’s children.
[5] As noted, we review criminal sentences for abuse of dis-
cretion. An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.31 Because the no-contact condition at issue here
affects Rieger’s fundamental rights attendant to her marriage
and the record does not establish that the prohibition of mari-
tal contact was narrowly tailored and reasonably necessary to
protect Rieger’s children or serve any rehabilitative purpose,
we conclude that the inclusion of this condition in the order
30
See Neb. Rev. Stat. § 28-707 (Cum. Supp. 2012).
31
State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013); State v. Pereira,
284 Neb. 982, 824 N.W.2d 706 (2013).
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of probation was an abuse of discretion. This error requires
that we remand the cause for resentencing to permit the county
court either to remove the no-contact condition or to tailor it
more narrowly to the factual circumstances of the case and the
rehabilitative goals sought to be achieved.32
Length of P robation
Rieger also contends in this appeal that the 18-month term
of her probation was excessive. The maximum term of pro-
bation upon conviction for a first offense misdemeanor is 2
years.33 Thus, an 18-month term of probation is within statu-
tory limits and may be disturbed on appeal only for an abuse
of discretion.34
We find none. Rieger’s offense was a Class I misdemeanor,
the most serious of misdemeanor offenses, which carries a
maximum sentence of 1 year’s imprisonment and a fine of
$1,000.35 The conditions of probation included counseling and
other rehabilitative measures. We discern no abuse of discre-
tion in the county court’s determination that 18 months was
an appropriate period in which to accomplish the rehabilita-
tive goals of probation. The fact that the term of probation
was longer than the maximum term of imprisonment for the
offense is of no consequence, because § 29-2263(1) specifi-
cally authorizes a maximum probation term of 2 years for per-
sons convicted of first-offense misdemeanors.
CONCLUSION
As we have noted, the error with respect to the spousal
no-contact condition requires that we remand the cause for
resentencing to permit the county court either to remove the
condition or to tailor it more narrowly to the factual circum-
stances of the case and the rehabilitative goals sought to be
achieved, while providing any necessary protection to the
32
See, State v. Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992); Dawson v.
State, supra note 13.
33
See Neb. Rev. Stat. § 29-2263(1) (Reissue 2008).
34
See State v. Dixon, supra note 4.
35
See Neb. Rev. Stat. § 28-106(1) (Cum. Supp. 2012) and § 28-907.
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minor children. We therefore vacate that portion of the sen-
tence of probation which prohibits Rieger from having any
contact with Vreeland and remand the cause to the district
court with directions to remand it to the county court with
instructions to resentence Rieger in conformity with this opin-
ion. The sentence is affirmed in all other respects.
Sentence vacated in part, and cause
remanded with directions.