State v. McTizic

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/21/2023 08:04 AM CDT
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STATE V. MCTIZIC
Cite as 31 Neb. App. 675State of Nebraska, appellee, v.
James H. McTizic, Jr., appellant.
___ N.W.2d ___
Filed March 21, 2023. No. A-22-422.
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
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. Sentences. Both Neb. Rev. Stat. §§ 29-2204 (Cum. Supp. 2022) and
29-2204.03 (Reissue 2016) give the trial court the discretion to order
further evaluations of the defendant prior to sentencing when it deems
such evaluations necessary for determining the sentence to be imposed.
4. Sentences: Evidence. A sentencing court has broad discretion as to
the source and type of evidence and information which may be used in
determining the kind and extent of the punishment to be imposed.
5. Prisoners. Neb. Rev. Stat. § 83-179 (Reissue 2014) provides that the
Department of Correctional Services shall perform a comprehensive
initial evaluation of each inmate entering its custody.
6. Sentences: Appeal and Error. The first step in analyzing whether sen-
tences are excessive is to examine the statutory limits for each offense.
7. ____: ____. An appellate court will not disturb a sentence imposed
within the statutory limits unless the trial court abused its discretion.
8. ____: ____. In reviewing whether an abuse of discretion occurred during
sentencing, an appellate court determines whether the sentencing court
considered and applied the relevant factors and any applicable legal
principles in determining the sentence to be imposed.
9. Sentences. Relevant factors in the sentencing court’s analysis may
include the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
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Cite as 31 Neb. App. 675record 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.
10. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment that includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all of the facts and circumstances surround-
ing the defendant’s life.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Rebecca
A. McClung, and Samantha Baldwin-Epstein for appellant.
Douglas J. Peterson, Attorney General, Siobhan E. Duffy,
and Braden Dvorak, Senior Certified Law Student, for appellee.
Pirtle, Chief Judge, and Bishop and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Following his pleas of no contest, James H. McTizic, Jr.,
was convicted of one count of first degree sexual assault and
three counts of attempted first degree sexual assault. He was
sentenced to 40 to 50 years’ imprisonment on his conviction
for first degree sexual assault and to 19 to 20 years’ impris-
onment on each of his convictions for attempted first degree
sexual assault. The sentences were to run concurrently with
one another. On appeal, McTizic argues that the district court
erred in failing to continue his sentencing so that he could
undergo a 90-day assessment with the Nebraska Department of
Correctional Services. McTizic also argues that ultimately, the
district court imposed excessive sentences. For the reasons set
forth below, we affirm.
BACKGROUND
McTizic was originally charged in the present case with
five counts: one count of first degree sexual assault of a
child, a Class IB felony, and four counts of first degree
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Cite as 31 Neb. App. 675sexual assault, each a Class II felony. Subsequent to the fil-
ing of the original information, the State filed an amended
information charging McTizic with one count of first degree
sexual assault of a child, a Class IB felony; one count of first
degree sexual assault, a Class II felony; and three counts of
attempted first degree sexual assault. The State alleged that
two of the attempted first degree sexual assault charges were
Class III felonies and that the third such charge was a Class
IIA felony. This distinction in classifications was because the
circumstances underlying two of the charges occurred prior to
an amendment of the statutory sentencing scheme in 2015.
On November 23, 2021, both the State and McTizic appeared
before the district court and indicated they had reached a plea
agreement. The State agreed to dismiss the charge of first
degree sexual assault of a child, and McTizic agreed to plead
no contest to the other four charges contained within the
amended information. The plea agreement did not include any
recommendation as to sentencing.
Upon the district court’s inquiry, McTizic affirmed that he
understood the nature of the charges, the possible penalties,
and the constitutional rights he was waiving as a result of his
no contest pleas. McTizic also indicated to the court his belief
that he was of “sound mind” when deciding to enter into the
plea agreement with the State. McTizic’s trial counsel affirmed
to the court her belief that McTizic was competent to enter into
the plea agreement.
The State provided a factual basis for McTizic’s no con-
test pleas. According to that factual basis, the charge of first
degree sexual assault against McTizic arose from sexual con-
tact which occurred between McTizic and his niece, L.C.,
when she was 5 to 9 years old. L.C. contacted law enforce-
ment in April 2018, when she was 21 years old, to report
that McTizic had sexually assaulted her when she was a
child. L.C. described that from approximately June 1, 2002,
through at least July 16, 2006, McTizic penetrated her vagina
with his hand and penis on multiple occasions. She told law
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Cite as 31 Neb. App. 675enforcement that when these instances were occurring, she
reported them to her mother and to her grandmother, but that
they did not do anything to stop the abuse.
After L.C. reported the sexual abuse to law enforcement, her
three sisters came forward and also reported sexual abuse at
the hands of their uncle, McTizic. The first charge of attempted
first degree sexual assault against McTizic arose from sexual
contact which occurred between McTizic and T.W. during the
time period from April 11, 1991, through May 20, 1995. At
the time of her report to law enforcement, T.W. was approxi-
mately 33 years old. T.W. reported that McTizic digitally pen-
etrated her vagina when she was between the ages of 5 and 8
years old. She also described instances when McTizic mastur-
bated in front of her and her sisters and made overtly sexual
comments in their presence.
The second charge of attempted first degree sexual assault
against McTizic arose from sexual contact which occurred
between McTizic and A.C. during the time period from August
19, 2016, through August 18, 2018. At the time of her report
to law enforcement, A.C. was approximately 19 years old.
A.C. reported that when she was 15 years old, McTizic rubbed
her leg with his hand all the way up to her vagina. When she
was 16 years old, she woke up on one occasion and realized
that her pants had been pulled down and that McTizic had his
mouth on her vagina.
The third and final charge of attempted first degree sex-
ual assault against McTizic arose from sexual contact which
occurred between McTizic and Q.M. during the time period
from October 29, 1997, through October 28, 2003. At the time
of her report to law enforcement, Q.M. was approximately 27
years old. Q.M. reported that when she was between the ages
of 4 and 9 years old, she would wake up to McTizic’s penis in
her mouth. She also reported that McTizic had digitally pen-
etrated her and had forced her, while she was awake, to put his
penis in her mouth.
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Cite as 31 Neb. App. 675Ultimately, the district court found that McTizic understood
the nature of the charges against him and the possible penal-
ties; that his no contest pleas were made knowingly, intel-
ligently, and voluntarily; and that the factual basis supported
his pleas. The court then accepted McTizic’s no contest pleas
to one count of first degree sexual assault and to three counts
of attempted first degree sexual assault. The court adjudged
McTizic guilty of those charges and ordered that a presentence
report be completed. Additionally, McTizic’s trial counsel indi-
cated her intent to have McTizic participate in a psychosexual
evaluation prior to sentencing. A sentencing hearing was sched-
uled for February 4, 2022.
The presentence report revealed that McTizic is 59 years
old. He did not graduate from high school, but did obtain his
diploma through the GED program. McTizic has been unem-
ployed almost his whole life. He informed the probation officer
who conducted his presentence interview that he has supported
himself mostly through engaging in illegal activities such as
burglary. At the time of his current arrest, McTizic was living
with his elderly and disabled parents. He has been divorced
twice and has three adult daughters, but has a relationship with
only one of those daughters.
McTizic has a lengthy criminal history dating back to
when he was a juvenile. His convictions as an adult include
burglary (seven times), attempted burglary, possession of bur-
glar’s tools, possession of a deadly weapon by a prohib-
ited person, disturbing the peace, criminal mischief, indecent
exposure, carrying a concealed weapon, forgery, assault and
battery, possession of a controlled substance (crack cocaine),
operating a motor vehicle during a period of suspension (six
times), failure to appear (six times), shoplifting (two times),
and obstructing the administration of law. As a result of these
offenses, McTizic has been sentenced to a period of incarcera-
tion with the Department of Correctional Services seven times,
many of these sentences for his burglary offenses. Essentially,
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Cite as 31 Neb. App. 675he has been in and out of prison on a regular basis since 1995.
Most recently, he was released from prison in October 2020,
after serving a 2-year sentence for attempted burglary and pos-
session of burglar’s tools. McTizic was sentenced to a period
of 5 years’ probation in 2017. Such probation was ultimately
revoked because he committed a felony during the probation-
ary period, failed drug tests, and failed to meet with his proba-
tion officer.
McTizic admitted to struggling with an addiction to crack
cocaine, but expressed that he had not “used” the drug in
approximately 2 years. However, he also told the probation offi-
cer that he currently desires to stop using controlled substances
because such use has contributed to his criminal endeavors. In
a prior presentence report, McTizic has also admitted to alco-
hol abuse.
McTizic has been diagnosed as suffering from bipolar dis-
order and other mental health issues. He also has some issues
with his physical health.
General testing conducted by the probation office revealed
that McTizic poses a very high risk for reoffense. Sex offender
specific testing indicated that McTizic posed a high risk of
reoffense. McTizic continues to deny that he has ever sexually
assaulted anyone.
Prior to the sentencing hearing, McTizic did submit to a
psychological evaluation with Dr. Kirk Newring, a licensed
psychologist. The report from this evaluation was offered to
the district court as an addendum to the presentence report.
Such report indicates that in addition to issues with his physi-
cal health and his mental health, McTizic may be suffering
from mild cognitive impairment. Newring noted that McTizic
should have a more indepth neuropsychological evaluation in
order to further assess his cognitive difficulties. Ultimately, he
concluded as follows:
McTizi[c] presents with some notable cognitive concerns
. . . . Should . . . McTizi[c] be placed in [the Department
of Correctional Services], it is recommended that [a]
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Cite as 31 Neb. App. 675more fulsome neuropsychological evaluation be com-
pleted with the consideration that . . . McTizi[c] may be
showing indicators of a progressive dementia such [as]
Alzheimer’s or other neurocognitive disease . . . . [He]
appears likely to have behavioral health as well as cogni-
tive and physical health concerns during his incarcera-
tion. Despite his multiple prior incarcerations, his age and
health conditions may make him vulnerable to pressures
and potential mistreatment by peers. He may warrant
placement in a geriatric focused housing unit if such is
available. . . . McTizi[c] does not have a known history
of sexual offense behavior while incarcerated. He denied
any notable problems with misconduct reports while in
prison. . . . McTizi[c] offered that he is prepared to
“retire” at [the Department of Correctional Services] with
the hopes that [the Department of Correctional Services]
will be able to provide for his healthcare needs.
Based on the results of this evaluation, McTizic’s trial coun-
sel motioned the court to continue McTizic’s sentencing so
that the court could order him committed to the Department
of Correctional Services for evaluation for a period not to
exceed 90 days pursuant to Neb. Rev. Stat. §§ 29-2204 (Cum.
Supp. 2022) and 29-2204.03 (Reissue 2016). In the motion,
counsel indicated that such evaluation by the Department of
Correctional Services “would provide more detailed informa-
tion as a basis for determining the sentence to be imposed that
[sic] has been provided by the presentence report.”
The court addressed McTizic’s motion to continue and
motion for further evaluation at the start of the scheduled
sentencing hearing on May 20, 2022. Initially, the district
court noted that McTizic’s sentencing had already been con-
tinued several times by McTizic in order for him to partici-
pate in the psychological evaluation. The court then allowed
McTizic’s counsel to argue in favor of the motions. Counsel
indicated her belief that further evaluation of McTizic’s
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Cite as 31 Neb. App. 675cognitive functioning was necessary prior to sentencing, not
as “an attempt to get him out of a period of incarceration,”
but instead as a way to “ensure that he is not unduly affected
medically by the incarceration because they didn’t know what
his needs were before he got there.” Counsel further argued
that the district court could use the additional information the
90-day evaluation would provide to assist it in understanding
McTizic’s motivation at the time of the offenses.
The State objected to the motions. It indicated that McTizic
was familiar with the prison system, given his multiple incar-
cerations. It also did not believe further evaluation of McTizic’s
cognitive functioning was necessary:
I think this is within the [c]ourt’s discretion to order this
type of eval[uation], but this is largely the same type
of evaluation that the Department of . . . Correctional
Services is going to do regardless. I don’t see any reason
to do it at this point when we have a psychological evalu-
ation, we have a full [presentence report], [and] we have
continued sentencing for approximately six months.
Ultimately, the district court denied McTizic’s request for
a continuance of sentencing so that he could undergo further
evaluation. The court explained:
I just for purposes of sentencing here today, I’m not
of the opinion that I need more information. I have read
everything. I read the evaluation from . . . Newring [and]
I have read the [presentence report] a couple of times like
I usually do, to be exact four times. So I have enough
information to sentence.
The court did indicate that it would, as part of the sen-
tencing order, direct that “the Diagnostic Evaluation Center
at the Nebraska Department of Correction[al Services] keep
[McTizic for evaluation] for 90 days to do a full evaluation
to determine where he needs to go so that your valid concerns
are met.”
The court then turned to address McTizic’s sentence.
Defense counsel argued that given McTizic’s physical, mental,
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Cite as 31 Neb. App. 675and cognitive health, the maximum allowable sentence was not
appropriate. Instead, counsel asked that the court order that the
sentences run concurrently with one another. To the contrary,
the State argued in favor of a lengthy term of incarceration
given McTizic’s extensive criminal history, the serious nature
of the current offenses, and the impact the offenses have had
on his victims. The State argued that McTizic is “a serial sex-
ual predator of young children.”
The district court sentenced McTizic to 40 to 50 years’
imprisonment on his conviction for first degree sexual assault.
It sentenced him to 19 to 20 years’ imprisonment on each of
his three convictions for attempted first degree sexual assault.
All four sentences were ordered to run concurrently with
one another.
McTizic appeals here.
ASSIGNMENTS OF ERROR
McTizic argues that the district court erred in failing
to continue the sentencing hearing so that McTizic could
be evaluated for a 90-day period by the Department of
Correctional Services. McTizic contends that the informa-
tion the court received from this evaluation would have been
highly relevant to its imposition of appropriate sentences.
McTizic also argues that the district court erred in imposing
excessive sentences.
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. Lierman, 305 Neb. 289, 940 N.W.2d 529(2020). A judicial abuse of discretion exists only when the rea-
sons 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. State v. Morton, 310
Neb. 355, 966 N.W.2d 57 (2021).
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Cite as 31 Neb. App. 675ANALYSIS
Denial of Motion to Continue Sentencing
for Further Evaluation.
On appeal, McTizic first asserts that the district court erred
“when it disregarded the motion for continuance regarding the
implementation of an additional evaluation of McTizic.” Brief
for appellant at 15. McTizic argues that the results of a further
neuropsychological evaluation would have provided the dis-
trict court with necessary sentencing information in addition
to addressing his placement needs within the correctional sys-
tem. Upon our review, we find no error in the district court’s
denial of McTizic’s request to undergo further evaluation prior
to sentencing.
[3] McTizic relies on the language of §§ 29-2204 and
29-2204.03 to support his assertion that the district court
should have granted his request for further evaluation. Section
29-2204(4) provides as follows:
When the [sentencing] court is of the opinion that impris-
onment may be appropriate but desires more detailed
information as a basis for determining the sentence to
be imposed than has been provided by the presentence
report . . . , the court may commit an offender to the
Department of Correctional Services. During that time,
the department shall conduct a complete study of the
offender as provided in section 29-2204.03.
Section 29-2204.03 provides, in relevant part:
(1) When the court is of the opinion that impris-
onment may be appropriate but desires more detailed
information as a basis for determining the sentence to
be imposed than has been provided by the presentence
report . . . , the court shall commit an offender to the
Department of Correctional Services for a period not
exceeding ninety days. The department shall conduct a
complete study of the offender during that time, inquir-
ing into such matters as his or her previous delinquency
or criminal experience, social background, capabilities,
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Cite as 31 Neb. App. 675and mental, emotional, and physical health and the reha-
bilitative resources or programs which may be available
to suit his or her needs.
(2) By the expiration of the period of commitment
or by the expiration of such additional time as the court
shall grant, not exceeding a further period of ninety days,
the offender shall be returned to the court for sentencing
and the court shall be provided with a written report of
the results of the study, including whatever recommenda-
tions the department believes will be helpful to a proper
resolution of the case. After receiving the report and the
recommendations, the court shall proceed to sentence
the offender . . . .
Both §§ 29-2204 and 29-2204.03 give the court the discretion
to order further evaluations of the defendant prior to sentencing
when it deems such evaluations necessary for determining the
sentence to be imposed.
[4] In this case, the district court was clearly of the opinion
that it did not need any further information than the presen-
tence report and the psychological evaluation had already
provided. The court stated, “I’m not of the opinion that I need
more information. I have read everything. I read the evalu-
ation from . . . Newring [and] I have read the [presentence
report] a couple of times like I usually do, to be exact four
times. So I have enough information to sentence.” We note
that a sentencing court has broad discretion as to the source
and type of evidence and information which may be used
in determining the kind and extent of the punishment to be
imposed. See State v. Thieszen, 300 Neb. 112, 912 N.W.2d
696 (2018).
Given the comprehensive nature of both the presentence
report and the psychological evaluation, we cannot say that
the district court abused its broad discretion in failing to order
a further evaluation of McTizic prior to sentencing. The court
had been provided with a great deal of information about
McTizic’s circumstances, including the possibility that he
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Cite as 31 Neb. App. 675was currently suffering from some cognitive decline and may
require further evaluation on this issue. Such information,
coupled with the serious nature of McTizic’s offenses and his
significant criminal history, provided the district court with
ample information to determine an appropriate sentence. This
is especially true given that neither McTizic nor his trial coun-
sel ever specifically argued that his cognitive decline contrib-
uted to the behavior which gave rise to his current offenses.
In fact, it is important to note that most of the behaviors
surrounding McTizic’s current offenses had occurred decades
prior to his convictions. There is nothing to indicate that
McTizic was suffering from any cognitive decline at that point
in time.
[5] To the extent that McTizic requested the further evalu-
ation to provide the Department of Correctional Services with
relevant information about his placement within the prison
system, we note that the district court did order a further
evaluation to occur after sentencing, but prior to any placement
decisions. At oral argument, the State took the position that the
district court did not have the authority to order any specific
type of postsentence evaluation. We do not need to resolve this
issue here. Neb. Rev. Stat. § 83-179 (Reissue 2014) provides
that the Department of Correctional Services shall perform a
comprehensive initial evaluation of each inmate entering its
custody. Section 83-179 states in part:
Upon initial admission to a facility, each person
committed to the department shall be given a physical
examination and a thorough evaluation. The evaluation
shall include such person’s psychological, social, edu-
cational, and vocational condition and history and the
motivation of the offense. A report containing the find-
ings of the examination and evaluation shall be submit-
ted on each such person to the chief executive officer of
the facility. The report shall include recommendations
regarding the facility to which such person should be
assigned, the degree and kind of custodial control, and the
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Cite as 31 Neb. App. 675program of treatment for rehabilitation, including medical
and psychological treatment and educational and voca-
tional training.
McTizic does not provide a convincing argument regarding
why the statutorily required postsentence evaluation would
be insufficient to both protect his interests and inform the
Department of Correctional Services of his condition, par-
ticularly where, as here, the district court has called attention
to the need for a thorough neuropsychological examination.
Moreover, we note that McTizic’s current sentence of impris-
onment is not the first time he has spent time in prison.
Instead, this will be his eighth sentence of imprisonment.
As such, it is clear that McTizic is knowledgeable about
the prison system and that the Department of Correctional
Services is familiar with McTizic’s needs. If McTizic’s needs
have changed since his last time in prison a few years ago, the
statutorily required postsentence evaluation should provide
the Department of Correctional Services with an adequate
opportunity to assess where McTizic should be placed within
the prison system.
Ultimately, we cannot say, given the specific facts of this
case, that the district court erred in failing to order a further
evaluation of McTizic prior to rendering its sentencing deci-
sion. McTizic was thoroughly evaluated by the probation office
and by an independent mental health professional prior to the
date of the sentencing hearing. Given these evaluations, the
district court did not believe that it needed any further informa-
tion to determine appropriate sentences. Furthermore, the court
ordered a postsentence evaluation of McTizic to occur prior to
his placement within the prison system.
Excessive Sentences.
McTizic also asserts on appeal that the district court
imposed excessive sentences. Specifically, he argues that in
imposing an aggregate sentence of 40 to 50 years’ impris-
onment, the district court failed to consider such mitigating
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Cite as 31 Neb. App. 675factors as his predisposition to criminal conduct, his chronic
health problems, his long-term struggle with substance abuse,
and his role as a caregiver for his elderly parents prior to
his arrest. McTizic believes that instead of considering these
mitigating factors in imposing a sentence, the court focused
solely on the serious nature of the charged offenses. Upon our
review, we find no abuse of discretion in the district court’s
sentencing determination.
[6,7] The first step in analyzing whether sentences are
excessive is to examine the statutory limits for each offense.
State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021). An
appellate court will not disturb a sentence imposed within the
statutory limits unless the trial court abused its discretion. State
v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016). McTizic
was convicted of first degree sexual assault, a Class II felony.
Class II felonies are punishable by 1 to 50 years’ imprison-
ment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). The
district court sentenced McTizic to 40 to 50 years’ imprison-
ment. Such sentence is clearly within the statutory limits.
McTizic was also convicted of three counts of attempted first
degree sexual assault. Two of these counts were charged as
Class III felonies because they occurred prior to August 30,
2015, when 2015 Neb. Laws, L.B. 605, took effect. See Neb.
Rev. Stat. §§ 28-201 and 28-319 (Reissue 2008). Prior to
August 30, 2015, Class III felonies were punishable by 1 to 20
years’ imprisonment. See § 28-105 (Reissue 2008). The court
sentenced McTizic for these two convictions to 19 to 20 years’
imprisonment, which was within the statutory limits. The third
count of attempted first degree sexual assault was charged as
a Class IIA felony because it occurred after August 30, 2015.
See §§ 28-201 and 28-319 (Reissue 2016). A Class IIA felony
is currently punishable by up to 20 years’ imprisonment. See
§ 28-105 (Cum. Supp. 2022). The court sentenced McTizic for
this conviction to 19 to 20 years’ imprisonment, which was
also within the statutory limits.
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Cite as 31 Neb. App. 675[8-10] Because the sentences are within the relevant statu-
tory limits, we review the district court’s sentences for an
abuse of discretion. In reviewing whether an abuse of discre-
tion occurred during sentencing, an appellate court determines
whether the sentencing court considered and applied the rel-
evant factors and any applicable legal principles in determining
the sentence to be imposed. State v. Starks, supra. Relevant
factors in that analysis may include 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 amount of violence involved
in the commission of the crime. Id. The appropriateness of a
sentence is necessarily a subjective judgment that includes the
sentencing judge’s observation of the defendant’s demeanor
and attitude and all of the facts and circumstances surrounding
the defendant’s life. Id.We begin our analysis by observing that at the sentencing
hearing, the district court very clearly indicated that it had
carefully considered its sentencing decision:
In fashioning this sentence I have considered . . .
McTizic’s age, mentality, education, experience[,] social
and cultural background, past criminal record, motivation
for the offense, the nature of the offense and the violence
involved in the commission of this offense.
The [c]ourt feels confident in my review of the pre-
sentence investigation report which I read four times,
and in my review of . . . Newring’s evaluation, which
was read three times because I recently got it, that
I have enough information to sentence . . . McTizic. I
have information — thorough information regarding his
previous criminal experience, his previous delinquency,
I have sufficient information regarding his social back-
ground, his capabilities, his mental status, his emotional
status, his physical health and I know through my expe-
rience of being on the bench now almost seven years,
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31 Nebraska Appellate Reports
STATE V. MCTIZIC
Cite as 31 Neb. App. 675the rehabilitative resources that are available at the
Nebraska Department of Correctional Services.
Contrary to McTizic’s assertions on appeal, there is no
indication in the record that the district court failed to appro-
priately consider all of the relevant circumstances present in
this case, including any mitigating circumstances. As we dis-
cussed above, both the presentence report and the report from
McTizic’s psychological evaluation provided indepth infor-
mation regarding McTizic’s past, his present living situation,
and his ongoing physical, mental, and cognitive health issues.
The district court indicated that it had carefully reviewed all
of these materials. In addition, during the sentencing hearing,
McTizic’s counsel detailed to the court all of the mitigating
circumstances present in the case.
We can find no abuse of discretion in how the district court
balanced these mitigating factors with not only the serious
nature of McTizic’s current offenses, but also with his signifi-
cant criminal history. As such, we can find no abuse of discre-
tion in the district court’s ultimate sentencing determination.
CONCLUSION
Upon our review, we find no abuse of discretion in the
district court’s sentencing determination. As such, we affirm
McTizic’s convictions and sentences.
Affirmed.