State v. Keenan

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/30/2020 08:08 AM CDT
- 575 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. KEENAN
Cite as 28 Neb. Ct. App. 575
State of Nebraska, appellee, v.
Kristie J. Keenan, appellant.
___ N.W.2d ___
Filed June 30, 2020. No. A-19-806.
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. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
3. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
4. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
5. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
6. Sentences. When imposing a sentence, the sentencing court is to 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 amount of violence
involved in the commission of the crime. The sentencing court is not
limited to any mathematically applied set of factors.
7. ____. 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.
- 576 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. KEENAN
Cite as 28 Neb. Ct. App. 575
Appeal from the District Court for Cheyenne County, Derek
C. Weimer, Judge, on appeal thereto from the County Court
for Cheyenne County, Randin R. Roland, Judge. Judgment of
District Court affirmed.
Stacy C. Bach, of Nossaman Petitt Law Firm, P.C., for
appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Pirtle, Riedmann, and Welch, Judges.
Pirtle, Judge.
INTRODUCTION
Based on a plea agreement, Kristie J. Keenan pled no con-
test to contributing to the delinquency of a minor and was sen-
tenced by the Cheyenne County Court to 6 months in jail. The
district court affirmed her sentence. On appeal, Keenan argues
that the county court’s sentence was excessive. Based on the
reasons that follow, we affirm the district court’s order, affirm-
ing the county court’s sentence.
BACKGROUND
Keenan was charged in county court with two offenses: con-
tributing to the delinquency of a minor and procuring/selling
alcohol to a minor, both Class I misdemeanors. Pursuant to
a plea agreement, Keenan pled no contest to the contribut-
ing to the delinquency of a minor charge and the other charge
was dismissed. The county court sentenced her to 6 months
in jail.
Keenan appealed to the district court, arguing that the county
court abused its discretion in sentencing her to 6 months in
jail. The district court affirmed the county court’s judgment,
finding that the sentence imposed was within the statutory lim-
its and was not an abuse of discretion.
- 577 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. KEENAN
Cite as 28 Neb. Ct. App. 575
ASSIGNMENT OF ERROR
Keenan assigns that “[t]he sentence imposed upon [her],
although within the statutory limits, is nevertheless excessive
and constituted an abuse of discretion by the Trial Court.”
STANDARD OF REVIEW
[1,2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48
(2019). A judicial abuse of discretion exists when the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.
[3-5] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion. State v. Becker, 304 Neb. 693, 936
N.W.2d 505 (2019). Both the district court and a higher appel-
late court generally review appeals from the county court for
error appearing on the record. Id. When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id.
ANALYSIS
Keenan assigns that her sentence was excessive and an
abuse of discretion. Relying on State v. McGinn, 303 Neb.
224, 928 N.W.2d 391 (2019), modified on denial of rehearing
303 Neb. 931, 932 N.W.2d 83, the State asserts that Keenan’s
assigned error—that the trial court, i.e., the county court,
abused its discretion—is not reviewable. Its position is based
on the Supreme Court’s statement that “[u]nder Neb. Rev.
Stat. § 25-2733(3) (Reissue 2016), the judgment of the dis-
trict court vacates the judgment in the county court and thus
only the district court’s judgment is reviewable by this court.”
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. KEENAN
Cite as 28 Neb. Ct. App. 575
State v. McGinn, 303 Neb. at 231, 928 N.W.2d at 396. We
disagree that review of Keenan’s assigned error is precluded
under this principle.
In McGinn, the county court found breath test results
admissible and convicted the defendant of driving under the
influence, second offense. On appeal to the district court,
that court found that the breath test results were inadmissible.
However, it affirmed the conviction, finding there was other
evidence to support the conviction. The defendant appealed
the district court’s order, assigning that “the district court
erred in sustaining the county court’s conviction after deter-
mining the breath test evidence was inadmissible.” Id. at 230,
928 N.W.2d at 395. The State argued the breath test results
were admissible but did not cross-appeal the district court’s
decision to the contrary. It claimed it did not need to cross-
appeal the district court’s admissibility decision because the
district court ultimately affirmed the conviction on other
grounds. Relying on Neb. Rev. Stat. § 25-2733(3) (Reissue
2016), our Supreme Court rejected that argument, stating that
the district court’s order vacated the county court’s order and
that therefore, only the district court’s order was reviewable
by the Supreme Court. The Supreme Court concluded that the
State had not preserved the alleged error committed by the
district court.
In McGinn, the only assigned error was that the district court
erred in affirming the defendant’s conviction absent admis-
sible breath test evidence. Because there was no cross-appeal,
the State was precluded from attacking the district court’s
finding as to the admissibility of the breath test and could not
rely upon the county court’s finding in that regard because the
district court’s order vacated that order. In the present case,
Keenan’s assigned error is that the trial court abused its discre-
tion in imposing an excessive sentence. Both the district court
and the Nebraska appellate courts generally review appeals
from the county court for error appearing on the record. State
v. Dittoe, 269 Neb. 317, 693 N.W.2d 261 (2005). So in an
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. KEENAN
Cite as 28 Neb. Ct. App. 575
appeal in which the district court affirmed the sentence
imposed by the county court, we are reviewing the sentence to
determine if it was excessive. Here, Keenan assigns what we
must ultimately review: Did the county court abuse its discre-
tion in sentencing Keenan? While the error may have been
more accurately presented as whether the district court erred in
failing to find that the county court abused its discretion and
imposed an excessive sentence, the assigned error as stated
adequately preserves the appellant’s claim.
Keenan argues that the county court’s sentence was exces-
sive and constituted an abuse of discretion because the court
failed to take certain factors into account and considered other
irrelevant information. She claims that the court focused on
events that occurred that were unrelated to the crime for which
she was being sentenced.
Keenan was convicted of one count of contributing to the
delinquency of a minor, a Class I misdemeanor, which is sub-
ject to a maximum sentence of 1 year’s imprisonment, a $1,000
fine, or both. There is no minimum sentence. See Neb. Rev.
Stat. §§ 28-709 and 28-106 (Reissue 2016). The county court
sentenced Keenan to 6 months in jail. Accordingly, Keenan’s
sentence is within the statutory limits and will not be disturbed
unless the county court abused its discretion. See State v.
Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
[6,7] When imposing a sentence, the sentencing court is to
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) moti-
vation for the offense, as well as (7) the nature of the offense,
and (8) the amount of violence involved in the commission of
the crime. Id. However, the sentencing court is not limited to
any mathematically applied set of factors. Id. The appropriate-
ness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life. Id.
- 580 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. KEENAN
Cite as 28 Neb. Ct. App. 575
Here, the record establishes that the county court reviewed
the presentence investigation report and considered all appro-
priate sentencing factors. At the sentencing hearing, the court
discussed Keenan’s lengthy criminal history, noting that she
had received supervised probation twice, and one of those
times her probation was revoked. It also noted that she was
incarcerated on another occasion for a felony. The court then
discussed events that happened on the night Keenan commit-
ted the offense at issue and injuries suffered by the victim.
The court also discussed the grounds to be accorded weight in
favor of withholding a sentence of imprisonment as set out in
Neb. Rev. Stat. § 29-2260(3) (Reissue 2016). Before announc-
ing its sentence, the court stated that it had taken into account
the factors under § 29-2260(3), as well as Keenan’s criminal
history, her educational background, her family background,
the serious harm caused to the victim in this case, her lack of
remorse, and the facts surrounding the offense.
Based upon the record, the county court considered the
appropriate factors. Therefore, the district court did not err in
concluding that the county court did not abuse its discretion in
sentencing Keenan.
CONCLUSION
We conclude that because the county court did not impose
an excessive sentence, the district court did not err when it
affirmed Keenan’s county court sentence. The judgment of the
district court is affirmed.
Affirmed.