State v. Dyer

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/07/2017 09:08 AM CST
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. DYER
Cite as 24 Neb. Ct. App. 514
State of Nebraska, appellee, v.
A nthony P. Dyer, appellant.
___ N.W.2d ___
Filed February 7, 2017. No. A-16-742.
1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
2. Sentences: Probation and Parole. If a defendant is convicted of a
Class IV felony, the court shall impose a sentence of probation unless
there are substantial and compelling reasons why the defendant cannot
effectively and safely be supervised in the community, including, but
not limited to, the criteria in subsections (2) and (3) of Neb. Rev. Stat.
§ 29-2260 (Supp. 2015).
3. ____: ____. Notwithstanding the language of Neb. Rev. Stat.
§ 29-2204.02 (Supp. 2015), Neb. Rev. Stat. § 29-2260 (Supp. 2015) still
requires that when considering probation versus imprisonment, the trial
court must have regard for the nature and circumstances of the crime.
4. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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 violence involved in the
commission of the crime.
5. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment 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.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Mark E. Rappl for appellant.
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STATE v. DYER
Cite as 24 Neb. Ct. App. 514
Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
Moore, Chief Judge, and R iedmann and Bishop, Judges.
R iedmann, Judge.
INTRODUCTION
Anthony P. Dyer appeals from his plea-based conviction in
the Lancaster County District Court of enticement by an elec-
tronic communication device. He assigns only that the court
imposed an excessive sentence. Finding no merit to his argu-
ments on appeal, we affirm.
BACKGROUND
On January 28, 2016, the State filed an information charg-
ing Dyer with enticement by electronic communication
device. He pled no contest to the charge. In exchange for
Dyer’s agreement to plead to the offense as charged, the State
agreed not to pursue any additional charges arising out of
the investigation.
According to the factual basis provided by the State at the
plea hearing, on November 17 and 18, 2015, Dyer began com-
municating online and through text messages with an investi-
gator of the Lancaster County sheriff’s office, who was acting
undercover as a 13-year-old female. During the conversation,
Dyer “began to articulate sexual activity” and sent a picture
of his genitals to someone he believed to be a 13-year-old
female. Dyer arranged a meeting at a specified location, and
when he arrived, he was arrested. Dyer was 30 years old at
the time. The district court accepted Dyer’s plea and found
him guilty.
In its sentencing order, the district court found:
[S]ubstantial and compelling reasons, as checked on the
attached sheet, exist why [Dyer] cannot effectively and
safely be supervised in the community on probation and
that imprisonment of [Dyer] is necessary for the protec-
tion of the public because the risk is substantial that,
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STATE v. DYER
Cite as 24 Neb. Ct. App. 514
during any period of probation, [Dyer] would engage in
additional criminal conduct and because a lesser sentence
would depreciate the seriousness of [Dyer’s] crime and
promote disrespect for the law.
On the form attached to the order, the district court indicated
its “substantial and compelling reasons” to withhold proba-
tion, which included that a lesser sentence would depreciate
the seriousness of the crime, a lesser sentence would pro-
mote disrespect for the law, incarceration was necessary to
protect the safety and security of the public, and the crime
caused or threatened serious injury or harm. The court there-
fore sentenced Dyer to 2 years’ imprisonment and 12 months’
postrelease supervision. He received credit for 1 day served.
Dyer timely appeals to this court.
ASSIGNMENT OF ERROR
Dyer assigns that the district court erred in imposing an
excessive sentence.
STANDARD OF REVIEW
[1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Custer, 292 Neb. 88, 871 N.W.2d
243 (2015).
ANALYSIS
Dyer argues that the sentence imposed by the district court
is excessive, because the court failed to articulate substantial
and compelling reasons why probation would not be appropri-
ate beyond the nature of the crime itself. We find no abuse of
discretion in the sentence imposed.
[2] Enticement by an electronic communication device
is a Class IV felony. Neb. Rev. Stat. § 28-833 (Reissue
2016). Class IV felonies are punishable by a maximum of 2
years’ imprisonment and 12 months’ postrelease supervision,
a $10,000 fine, or a combination of both fine and imprison-
ment, and a minimum of 9 months’ postrelease supervision if
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STATE v. DYER
Cite as 24 Neb. Ct. App. 514
imprisonment is imposed. See Neb. Rev. Stat. § 28-105 (Supp.
2015). If a defendant is convicted of a Class IV felony, the
court shall impose a sentence of probation unless there are
substantial and compelling reasons why the defendant cannot
effectively and safely be supervised in the community, includ-
ing, but not limited to, the criteria in subsections (2) and (3) of
Neb. Rev. Stat. § 29-2260 (Supp. 2015). See Neb. Rev. Stat.
§ 29-2204.02 (Supp. 2015).
Under § 29-2260:
(2) Whenever a court considers sentence for an offender
convicted of either a misdemeanor or a felony for which
mandatory or mandatory minimum imprisonment 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 that imprison-
ment of the offender is necessary for protection 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 seri-
ous 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;
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STATE v. DYER
Cite as 24 Neb. Ct. App. 514
(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
(k) Imprisonment of the offender would entail exces-
sive hardship to his or her dependents.
Dyer argues that when § 29-2204.02 and related laws were
enacted, the Legislature specifically elected not to reclassify
enticement by an electronic device from a Class IV felony,
meaning there is a presumption of probation for this offense.
Thus, he claims that the intent of the Legislature is defeated if
a trial court is allowed to withhold probation based solely on
the nature of the offense.
[3] We find no merit to this argument for two reasons. First,
notwithstanding the language of § 29-2204.02, § 29-2260 still
requires that when considering probation versus imprison-
ment, the trial court must have regard for the nature and cir-
cumstances of the crime. See State v. Charles, 13 Neb. Ct. App.
305, 691 N.W.2d 567 (2005). Thus, the court must consider
not only the elements of the crime, but the specific circum-
stances of the crime which this particular defendant commit-
ted. The evidence indicates the trial court did so in the pres-
ent case. At sentencing, the district court noted that not only
did Dyer engage in sexual communication with someone he
believed to be a 13-year-old, but he arranged a meeting and
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STATE v. DYER
Cite as 24 Neb. Ct. App. 514
showed up at the agreed upon time and place with condoms
in his possession.
We also reject Dyer’s argument because the court in this
case did not elect to withhold probation based solely on
the nature of the offense. Section 29-2260 permits the trial
court to withhold probation if it finds that imprisonment “is
necessary for protection of the public” because the risk is
substantial that during the period of probation the offender
will engage in additional criminal conduct or because a lesser
sentence will depreciate the seriousness of the offender’s
crime or promote disrespect for the law. The trial court found
these factors present in the case at hand. The court relied on
the evaluations, some of which determined Dyer’s risk for
reoffending was in the “moderate-high risk category” which
the court concluded put him “in the moderate-high category
to re-offend.” The court also noted the fact that the State
agreed not to pursue additional charges as part of the plea
agreement reached with Dyer, despite the fact that Dyer not
only engaged in online communication but followed through
with his plan to meet a 13-year-old in order to engage in
sexual activity.
[4,5] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Custer, 292 Neb. 88, 871 N.W.2d 243
(2015). When imposing a sentence, a sentencing judge should
consider 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 violence involved in the commission of
the crime. Id. The appropriateness of a sentence is necessar-
ily 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.
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STATE v. DYER
Cite as 24 Neb. Ct. App. 514
Although Dyer received the maximum sentence allowed
for a Class IV felony, it falls within the statutory limits. See
State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011) (sentence at
maximum limit is still within that limit). The trial court con-
sidered the required factors in fashioning Dyer’s sentence and
articulated its substantial and compelling reasons for withhold-
ing probation. Based on the foregoing, we cannot say that the
sentence imposed constitutes an abuse of the district court’s
discretion. We therefore affirm.
CONCLUSION
We conclude that the district court did not abuse its discre-
tion with the sentence imposed. The conviction and sentence
are therefore affirmed.
A ffirmed.