State v. Baxter

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. BAXTER
Cite as 295 Neb. 496
State of Nebraska, appellee, v.
Shannon L. Baxter, appellant.
___ N.W.2d ___
Filed January 6, 2017. No. S-16-237.
1. Criminal Law: Motions for Continuance: Appeal and Error. A deci-
sion whether to grant a continuance in a criminal case is within the
discretion of the trial court and will not be disturbed on appeal absent
an abuse of discretion.
2. Judges: Words and Phrases. 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.
3. Motions for Continuance: Appeal and Error. A court does not
abuse its discretion in denying a continuance unless it clearly appears
that the party seeking the continuance suffered prejudice because of
that denial.
4. Criminal Law: Motions for Continuance: Appeal and Error. Where
the criminal defendant’s motion for continuance is based upon the
occurrence or nonoccurrence of events within the defendant’s own con-
trol, denial of such motion is no abuse of discretion.
5. Sentences: Appeal and Error. A determination of whether there are sub-
stantial and compelling reasons under Neb. Rev. Stat. § 29-2204.02(2)(c)
(Supp. 2015) is within the trial court’s discretion and will not be reversed
on appeal absent an abuse of discretion.
6. Sentences. The court may fulfill the requirement of Neb. Rev. Stat.
§ 29-2204.02(3) (Supp. 2015) to state its reasoning on the record by a
combination of the sentencing hearing and sentencing order.
7. Sentences: Presentence Reports. The court’s determination of substan-
tial and compelling reasons under Neb. Rev. Stat. § 29-2204.02(2)(c)
(Supp. 2015) should be based on a review of the record, including the
presentence investigation report and the record of the trial, and its deter-
mination must be supported by such record.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. BAXTER
Cite as 295 Neb. 496
Appeal from the District Court for Franklin County: Stephen
R. Illingworth, Judge. Affirmed.
Richard Calkins, of Calkins Law Office, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Shannon L. Baxter appeals the sentences imposed by the
district court for Franklin County upon her plea-based con-
victions for possession of a controlled substance and unlaw-
ful acts relating to drugs. The court imposed sentences of
imprisonment for each conviction and ordered the sentences
to be served concurrent with one another. On appeal, Baxter
claims, inter alia, that the court did not follow Neb. Rev. Stat.
§ 29-2204.02 (Supp. 2015), enacted as part of 2015 Neb. Laws,
L.B. 605, when it found that with regard to the Class IV felony
possession conviction, she was not a suitable candidate for
probation and should instead be sentenced to imprisonment.
We affirm Baxter’s sentences.
STATEMENT OF FACTS
Pursuant to a plea agreement, the State dropped certain
charges against Baxter and filed an amended information
charging her with two counts: (1) possession of a controlled
substance, in violation of Neb. Rev. Stat. § 28-416(3) (Supp.
2015), a Class IV felony, and (2) unlawful acts relating to
drugs, in violation of Neb. Rev. Stat. § 28-417(1)(f) (Reissue
2016), a Class III misdemeanor. The State alleged in count I
that on or about September 28, 2015, Baxter had knowingly
and intentionally possessed a controlled substance. The
State alleged in count II that on or about May 29, 2015,
Baxter had possessed a prescribed controlled substance in a
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STATE v. BAXTER
Cite as 295 Neb. 496
container other than that in which it was delivered to her by
a practitioner.
On November 5, 2015, Baxter pled no contest to the two
counts. The district court accepted her pleas and found her
guilty of both offenses. The court set sentencing for February
4, 2016. On January 25, Baxter filed a motion for continuance
of the sentencing “to allow [her] sufficient time to obtain an
[sic] drug and alcohol evaluation, and time for the probation
office to complete a presentence investigation.” The court
overruled the motion and confirmed that sentencing was set for
February 4.
Because Baxter’s conviction for possession of a controlled
substance was a Class IV felony which arose from events that
occurred on September 28, 2015, sentencing on that convic-
tion was subject to § 29-2204.02, enacted as part of L.B. 605,
with an effective date of August 30, 2015. Section 29-2204.02,
which is set forth in full in our analysis below, provides in
part that when the offense is a Class IV felony, the court shall
impose a sentence of probation unless, inter alia, there are
“substantial and compelling reasons” that community supervi-
sion will not be an effective and safe sentence.
Following the sentencing hearing, the court in this case
found that Baxter was not a suitable candidate for probation
and that there were substantial and compelling reasons why
she could not effectively and safely be supervised in the com-
munity on probation. The court therefore sentenced Baxter to
imprisonment for 2 years followed by 12 months of postrelease
supervision following her release from incarceration for the
possession conviction, and to imprisonment for 3 months for
the unlawful acts conviction. The court ordered the sentences
of imprisonment to be served concurrent with one another. The
sentences imposed were the maximum allowable sentences
under Neb. Rev. Stat. § 28-105 (Supp. 2015) for a Class IV
felony and under Neb. Rev. Stat. § 28-106 (Supp. 2015) for a
Class III misdemeanor.
Baxter appeals her sentences.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. BAXTER
Cite as 295 Neb. 496
ASSIGNMENTS OF ERROR
Baxter claims, summarized, that the district court erred
when it (1) overruled her motion to continue the sentencing
hearing and (2) found that she was not a suitable candidate for
probation and instead sentenced her to imprisonment.
STANDARDS OF REVIEW
[1,2] A decision whether to grant a continuance in a crimi-
nal case is within the discretion of the trial court and will not
be disturbed on appeal absent an abuse of discretion. State v.
Ash, 286 Neb. 681, 838 N.W.2d 273 (2013). 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.
ANALYSIS
District Court Did Not Abuse Its Discretion
When It Overruled Baxter’s Motion
to Continue Sentencing.
Baxter first claims that the district court erred when it
overruled her motion to continue the sentencing hearing. She
contends that the court abused its discretion because it did
not grant her motion which asserted that she needed a con-
tinuance to “allow [her] sufficient time to obtain an [sic] drug
and alcohol evaluation.” She argues that because she was not
allowed additional time to complete the evaluation, the court
did not have “all available and relevant information about [her]
substance abuse issues” before it imposed sentence. Brief for
appellant at 14. We conclude that the court did not abuse its
discretion when it overruled the motion.
[3,4] We have said that a court does not abuse its discre-
tion in denying a continuance unless it clearly appears that
the party seeking the continuance suffered prejudice because
of that denial. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866
(2011). We have also said that “[w]here the criminal defend­
ant’s motion for continuance is based upon the occurrence or
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STATE v. BAXTER
Cite as 295 Neb. 496
nonoccurrence of events within the defendant’s own control,
denial of such motion is no abuse of discretion.” State v.
Eichelberger, 227 Neb. 545, 556, 418 N.W.2d 580, 588 (1988).
We determine that both these principles militate against a find-
ing that the court abused its discretion.
With regard to prejudice, we have reviewed the presen-
tence investigation report which included ample information
regarding Baxter’s substance abuse issues. Such information
included a narrative of a probation officer’s interview with
Baxter in which she reported on her past substance use and her
completion of a substance abuse treatment program. The report
included the results of a “risk and needs assessment instru-
ment” which indicated that Baxter had a low risk with respect
to alcohol, but her risk with respect to drugs was in the maxi-
mum range. The report included a narrative excerpt from the
assessment which stated, inter alia, that “[s]erious drug related
problems are indicated” and that “[r]elapse risk is high.” The
probation officer noted that Baxter had been referred for a sub-
stance abuse evaluation but that the officer had not yet received
the evaluation.
Baxter argues that the court had incomplete information
because it did not have the substance abuse evaluation; how-
ever, she does not specify what information is lacking or how
it might have affected the court’s sentencing decision. We note
further that at the sentencing hearing, Baxter had the oppor-
tunity to present information or argument regarding her sub-
stance abuse issues.
Regarding “the occurrence or nonoccurrence of events
within the defendant’s own control,” see State v. Eichelberger,
227 Neb. at 556, 418 N.W.2d at 588, we note that the probation
officer’s report included the statement that Baxter “does not
appear to be motivated to participate in any type of supervi-
sion” and specifically that “[b]etween November 12[, 2015,]
and January 12, [2016,] this officer . . . set appointments to
see [Baxter] on 12/10, 12/31 and 1/6” but that Baxter “did
not show for the scheduled appointments.” Baxter eventually
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STATE v. BAXTER
Cite as 295 Neb. 496
reported for an appointment on January 12, 2016, at which
time she was referred for a substance abuse evaluation. The
State argues that the lack of a completed evaluation at the
time of sentencing was due to Baxter’s own failure to appear
for the earlier scheduled appointments with the probation offi-
cer, at which time she would normally have been referred for
an evaluation.
Given Baxter’s inaction until January 12, 2016, we deter-
mine that the delay in completion of the evaluation was due
to events within Baxter’s own control. Further, Baxter has not
shown that she suffered prejudice as a result of the overruling
of her motion to continue the sentencing. We therefore con-
clude that the district court did not abuse its discretion when
it overruled Baxter’s motion to continue.
District Court Did Not Abuse Its Discretion When
It Determined That There Were Substantial and
Compelling Reasons That Baxter Could Not
Effectively and Safely Be Supervised in
the Community on Probation.
Baxter next claims that the district court erred when it found
that she was not a suitable candidate for probation and instead
sentenced her to imprisonment. We conclude that the court did
not abuse its discretion in sentencing Baxter.
Baxter’s arguments implicate statutory changes resulting
from the enactment of L.B. 605, and, in particular, the frame-
work for sentencing offenders for Class IV felonies. Under
§ 29-2204.02, the court shall impose a sentence of probation
for a Class IV felony unless, inter alia, there are substantial and
compelling reasons that community supervision will not be an
effective and safe sentence. We note that further amendments
were made to § 29-2204.02 and other statutes with an effective
date of April 20, 2016. In this opinion, we discuss and quote
the version of § 29-2204.02 which is set forth by L.B. 605 and
which was in effect at the relevant times in this case. Section
29-2204.02 provided in relevant part as follows:
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295 Nebraska R eports
STATE v. BAXTER
Cite as 295 Neb. 496
(1) Except when a term of probation is required by law,
in imposing a sentence upon an offender for a Class III,
IIIA, or IV felony, the court shall:
(a) Impose a sentence of imprisonment within the
applicable range in section 28-105; and
(b) Impose a sentence of post-release supervision, under
the jurisdiction of the Office of Probation Administration,
within the applicable range in section 28-105.
(2) If the criminal offense is a Class IV felony, the
court shall impose a sentence of probation unless:
(a) The defendant is concurrently or consecutively sen-
tenced to imprisonment for any felony other than another
Class IV felony;
(b) The defendant has been deemed a habitual criminal
pursuant to section 29-2221; or
(c) There are substantial and compelling reasons why
the defendant cannot effectively and safely be supervised
in the community, including, but not limited to, the crite-
ria in subsections (2) and (3) of section 29-2260. Unless
other reasons are found to be present, that the offender
has not previously succeeded on probation is not, stand-
ing alone, a substantial and compelling reason.
(3) If a sentence of probation is not imposed, the court
shall state its reasoning on the record, advise the defend­
ant of his or her right to appeal the sentence, and impose
a sentence as provided in subsection (1) of this section.
Neb. Rev. Stat. § 29-2260 (Supp. 2015), to which refer-
ence is made in § 29-2204.02(2)(c), provided in relevant part
as follows:
(2) Whenever a court considers sentence for an
offender convicted of either a misdemeanor or a felony
for which mandatory or mandatory minimum imprison-
ment is not specifically required, the court may withhold
sentence of imprisonment unless, having regard to the
nature and circumstances of the crime and the history,
character, and condition of the offender, the court finds
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STATE v. BAXTER
Cite as 295 Neb. 496
that imprisonment of the offender is necessary for protec-
tion of the public because:
(a) The risk is substantial that during the period of
probation the offender will engage in additional crimi-
nal conduct;
(b) The offender is in need of correctional treatment
that can be provided most effectively by commitment to
a correctional facility; or
(c) A lesser sentence will depreciate the seriousness of
the offender’s crime or promote disrespect for law.
(3) The following grounds, while not controlling the
discretion of the court, shall be accorded weight in favor
of withholding sentence of imprisonment:
(a) The crime neither caused nor threatened serious
harm;
(b) The offender did not contemplate that his or her
crime would cause or threaten serious harm;
(c) The offender acted under strong provocation;
(d) Substantial grounds were present tending to
excuse or justify the crime, though failing to establish
a defense;
(e) The victim of the crime induced or facilitated com-
mission of the crime;
(f) The offender has compensated or will compensate
the victim of his or her crime for the damage or injury the
victim sustained;
(g) The offender has no history of prior delinquency
or criminal activity and has led a law-abiding life for
a substantial period of time before the commission of
the crime;
(h) The crime was the result of circumstances unlikely
to recur;
(i) The character and attitudes of the offender indicate
that he or she is unlikely to commit another crime;
(j) The offender is likely to respond affirmatively to
probationary treatment; and
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STATE v. BAXTER
Cite as 295 Neb. 496
(k) Imprisonment of the offender would entail exces-
sive hardship to his or her dependents.
We first address our standard of review for a court’s deter-
mination under § 29-2204.02(2)(c) that there “are substantial
and compelling reasons why the defendant cannot effectively
and safely be supervised in the community.” Our general stan-
dard with respect to sentencing decisions is that an appellate
court will not disturb a sentence imposed within the statutory
limits absent an abuse of discretion by the trial court. State v.
Trice, 292 Neb. 482, 874 N.W.2d 286 (2016). We have also
said that whether probation or incarceration is ordered is a
choice within the discretion of the trial court, whose judgment
denying probation will be upheld in the absence of an abuse
of discretion. State v. Russell, 291 Neb. 33, 863 N.W.2d 813
(2015). But § 29-2204.02(2) effectively adds a general limi-
tation on a court’s discretion in choosing between probation
and incarceration with respect to a Class IV felony, because
it requires a court to impose a sentence of probation for a
Class IV felony unless certain specified exceptions are present;
one of those exceptions is “substantial and compelling reasons”
described under § 29-2204.02(2)(c).
[5] Within the framework of this general limitation on the
sentencing court’s discretion with respect to Class IV felo-
nies under § 29-2204.02(2), we see nothing in the statute that
would cause us to conclude that the specific determination of
whether there are substantial and compelling reasons under
§ 29-2204.02(2)(c) is not within the court’s historical range of
discretion. Although § 29-2204.02(2)(c) provides guidelines,
a determination thereunder is essentially a part of the conven-
tional decision whether probation or incarceration is ordered.
We therefore hold that a determination of whether there are
substantial and compelling reasons under § 29-2204.02(2)(c) is
within the trial court’s discretion and will not be reversed on
appeal absent an abuse of discretion.
Baxter’s arguments require us to consider two other
questions: (1) How does a court meet its obligation under
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§ 29-2204.02(3) to “state its reasoning on the record” when it
determines that probation will not be imposed? (2) What sort
of facts constitute valid reasons that may be substantial and
compelling under § 29-2204.02(2)(c)? To assist us in answer-
ing these questions, we review the substance and form of how
the district court in this case stated its reasoning for reject-
ing probation.
At the sentencing hearing, the court explained the sub-
stantial and compelling reasons that led it to determine that
Baxter was not a suitable candidate for probation. Regarding
Baxter’s history with probation, the court stated that she had
been placed on probation for three prior offenses—in 1996,
1998, and 2002—and that each probation had been revoked
and she had been sentenced to imprisonment. Regarding the
likelihood that the circumstances that resulted in her current
crimes would recur, the court stated that Baxter had scored
90 percent or higher, in the maximum risk range, for the fac-
tors “drugs,” “violence,” and “antisocial.” The court further
stated that although it had ordered Baxter to do an evalua-
tion 3 months before the sentencing, she had “just got around
to it in the last three weeks.” The court further stated that
after the plea and before sentencing, Baxter “did not appear
for scheduled appointments,” and that the probation report
stated that she “did not appear to be motivated to participate
in supervision.”
In the sentencing order containing the court’s decision to
sentence Baxter to imprisonment rather than probation, the
court stated as follows:
The Court finds that [Baxter] is not a suitable can-
didate for probation and that there are substantial and
compelling reasons why [Baxter] cannot effectively and
safely be supervised in the community on probation.
These reasons are as follows:
(1) [Baxter] failed to comply and had probation revoked
in 3 previous cases;
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(2) A lesser sentence would depreciate the seriousness
of [Baxter’s] crime[s];
(3) A lesser sentence would promote disrespect for
the law;
(4) The risk is substantial that during the period of
probation, [Baxter] will engage in additional criminal
conduct;
(5) [Baxter] has not lead a law-abiding life for a sub-
stantial period of her life; and
(6) The crime was not the result of circumstances
unlikely to recur.
Having recited portions of the record, we now address the
requirement under § 29-2204.02(3) that “[i]f a sentence of
probation is not imposed, the court shall state its reasoning
on the record . . . .” Section 29-2204.02 generally tips the
balance in sentencing for a Class IV felony toward probation.
Section 29-2204.02(3) reinforces this balance by obligating
the court to state its reasoning for withholding probation on
the record. This may suggest that if the court is having dif-
ficulty articulating its reasoning for imposing a sentence of
imprisonment on the record, then the court should impose a
sentence of probation.
Under § 29-2204.02(3), the court is required to state its
“reasoning” rather than its “reasons” on the record. Baxter
argues that the court in this case did not meet the requirement
of § 29-2204.02(3) because, looking only at the sentencing
order, the court merely listed reasons it found to be substantial
and compelling, but did not explain its reasoning. We agree
that “reasoning” means that the court should not simply sup-
ply a list of reasons, but, instead, should demonstrate how
it reached its determination that there were substantial and
compelling reasons. However, the requirement that a court
state its reasoning “on the record” does not limit the expres-
sion of the court’s reasoning to the sentencing order. The
“record” also includes statements the court makes when it
pronounces sentence.
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STATE v. BAXTER
Cite as 295 Neb. 496
[6] In the present case, the district court stated and
explained its reasoning when it pronounced sentence by, inter
alia, giving specific examples of information from the presen-
tence investigation report that led the court to determine that
certain substantial and compelling reasons were present. The
written sentencing order was more conclusory than explana-
tory. The court may fulfill the requirement of § 29-2204.02(3)
to state its reasoning on the record by a combination of the
sentencing hearing and sentencing order, as the court did in
this case.
We next consider whether the reasons the district court gave
were substantial and compelling reasons within the mean-
ing of § 29-2204.02(2)(c). The statute itself does not define
the phrase substantial and compelling. However, the statute
provides some guidance as to what sort of reasons may val-
idly be considered substantial and compelling. In this regard,
we note that § 29-2204.02(2)(c) provides that such reasons
include but are not limited to “the criteria in subsections (2)
and (3) of section 29-2260.” In its sentencing order, the district
court listed six reasons it found to be substantial and compel-
ling; five of the six appear to be derived from subsections
(2) and (3) of § 29-2260, which are set forth above. Under
§ 29-2204.02(2)(c), these were valid reasons to impose a sen-
tence of incarceration rather than probation.
The other reason the district court gave was that Baxter
“failed to comply and had probation revoked in 3 previous
cases.” Section 29-2204.02(2)(c) provides that “[u]nless other
reasons are found to be present, that the offender has not
previously succeeded on probation is not, standing alone, a
substantial and compelling reason.” We do not read this sen-
tence to mean that a previous failure or failures to complete
probation cannot be among the substantial and compelling
reasons. Instead, we read it to mean that probation failure
standing alone is not a sufficient reason to withhold proba-
tion. In the present case, the court found other substantial and
compelling reasons, and therefore, under § 29-2204.02(2)(c),
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it was not improper to consider Baxter’s previous failures at
probation as additional substantial and compelling reasons.
We therefore determine that the reasons given by the court,
which included criteria derived from § 29-2260 and other
reasons, were valid reasons for the court’s consideration under
§ 29-2204.02(2)(c).
[7] Having determined that the reasons given by the court
in this case were valid reasons under § 29-2204.02(2)(c) and
that the court adequately stated its reasoning on the record,
we must determine whether the court abused its discretion
when it determined that the stated reasons were substantial and
compelling. As noted above, the statute does not specifically
define the phrase “substantial and compelling.” However, both
terms have commonly understood meanings and it is within
the court’s discretion to determine that its reasons are weighty
enough to be substantial and compelling. The court’s determi-
nation of substantial and compelling reasons should be based
on a review of the record, including the presentence investiga-
tion report and the record of the trial, and its determination
must be supported by such record.
In the present case, we conclude that the record supports
the court’s determination that there were substantial and com-
pelling reasons to withhold probation. In addition to the spe-
cific reasons and examples from the presentence investigation
report stated by the court at the sentencing hearing and in its
sentencing order set forth above, we note that in the presen-
tence investigation report, the probation officer stated that
when Baxter was asked how a term of probation would affect
her life, Baxter replied, “‘Won’t affect my life. Didn’t affect
my life until I screwed up.’” From this and other observa-
tions in the presentence investigation report, it appears that if
Baxter were put on probation, she would be subject to influ-
ences that gave rise to the crimes for which she was convicted
and that probation would not affect her behavior. We believe
the record shows that Baxter cannot effectively and safely be
supervised in the community. The record supports the court’s
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determination, and we conclude that the court did not abuse
its discretion when it determined that there were substantial
and compelling reasons that probation would not be an effec-
tive and safe sentence.
CONCLUSION
We conclude that the district court did not abuse its dis-
cretion when it overruled Baxter’s motion to continue sen-
tencing. We further conclude that the court did not abuse
its discretion when it determined that there were substantial
and compelling reasons under § 29-2204.02(2)(c) that Baxter
could not effectively and safely be supervised in the com-
munity on probation. We therefore affirm Baxter’s sentences
of imprisonment.
A ffirmed.