--------------------------------------------------------------IN THE SUPREME COURT OF NEBRASKA
STATE OF NEBRASKA,
Appellee,
v
o
lion RY
JOHN C. KROGER,
L._'''''.. ''
Appellant.
lAW LIBRARY
CREIGI'ITOl-l UNiVEasrrv
_________________________________________________________
APPEAL FROM THE DISTRICT COURT
OF THURSTON COUNTY, NEBRASKA
Honorable Darvid Quist, District Judge
BRIEF OF APPELLEE
ROBERT M. SPIRE
Attorney General
DALE D. BRODKEY
Assistant Attorney General
2115 State Capitol
Lincoln, NE 68509
Tel: (402) 471-2682
Attorneys for Appellee
."
..
JA~~~~86
INDEX
Subject Index
Statement of the Case --------------------------------------
1
Propositions of Law ----------------------------------------
1
Statement of Facts -----------------------------------------
2
Argument ---------------------------------------------------
8
Conclusion ------------------------------------------------- 18
Proof of Service ------------------------------------------- 19
Cases Cited
State v. Evans, 215 Neb. 433, 338 N.W.2d 788 (1983) ---- 1,2,16
State v. Fix, 219 Neb. 674, 365 N.W.2d 471 (1985) -------- 2,16
State v. Goodpasture, 215 Neb. 341, 338 N.W.2d
446 (1983) --------------------------------------------- 1,10
State v. Harrington, 202 Neb. 356, 275 N.W.2d
294 (1979) --------------------------------------------- 1,10
State v. Kramer, 203 Neb. 658, 279 N.W.2d 634 (1979) ----- 1,10
State v. Laflin, 201 Neb. 824, 272 N.W.2d 376 (1978) ----- 1,16
State v. Nix, 215 Neb. 410, 338 N.W.2d 782 (1983) ---------- 16
State v. Stranghoener, 208 Neb. 598, 304 N.W.2d
679 (1981) ---------------------------------------- 1,2,10,17
State v. True, 210 Neb. 701, 316 N.W.2d 623 (1982) ------- 2,16
State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979) ---- 2,14,16
Statutes Cited
Neb.Rev.Stat. §28-105(1)
(Reissue 1979) --------------------
8
Neb.Rev.Stat. §28-206 (Reissue 1979) ---------------------- 2,8
Neb.Rev.Stat. §28-511 (1984 Cum.Supp.) ---------------------
2
Neb.Rev.Stat. §28-511(1)
(1984 Cum.Supp.) ------------------
8
Neb.Rev.Stat. §28-518 (1984 Cum.Supp.) ---------------------
8
Neb.Rev.Stat. §28-518(1)
(1984 Cum.Supp.) ------------------
3
Neb.Rev.Stat. §29-2260(2)
(1984 Cum.Supp.) ----------------- 14
Neb.Rev.Stat. §29-2260(3)
(1984 Cum.Supp.) ----------------- 14
Neb. Rev. Stat. §88-501-§88-517 (Reissue 1981,
1984 Cum.Supp.) ------------------------------------------
2
STATEMENT OF THE CASE
The
appellee
accepts
the
appellant's
Statement
of
Case.
PROPOSITIONS OF LAW
I.
IN CONS IDERING A PROPER SENTENCE, THE TRIAL
COURT IS NOT LIMITED IN ITS DISCRETION TO ANY
MATHEMATICALLY APPLIED SET OF FACTORS.
IT IS
NECESSARILY A SUBJECTIVE JUDGMENT AND INCLUDES THE
OBSERVATIONS
OF THE
SENTENCING
JUDGE
AS TO
DEMEANOR, ATTITUDE, AND ALL FACTS AND CIRCUMSTANCES
SURROUNDING THE LIFE OF THE DEFENDANT.
State v. Kramer, 203 Neb. 658, 279 N.W.2d 634
(1979)
State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679
(1981)
II.
A SENTENCING JUDGE HAS BROAD DISCRETION AS TO
THE SOURCE AND TYPE OF EVIDENCE OR INFORMATION
WHICH MAY BE USED AS ASSISTANCE IN DETERMINING THE
KIND AND EXTENT OF THE PUNISHMENT TO BE IMPOSED,
AND THE JUDGE MAY CONSIDER PROBATION OFFICER
REPORTS, POLICE REPORTS, AFFIDAVITS, AND OTHER
INFORMATION, INCLUDING HIS OR HER OWN PERSONAL
OBSERVATIONS.
State v. Kramer, 203 Neb. 658, 279 N.W.2d 634 (1979)
State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1981)
State v. Goodpasture, 215 Neb. 341, 338 N.W.2d 446 (1983)
State v. Harrington, 202 Neb. 356, 275 N.W.2d 294 (1979)
III.
THE SUPREME COURT WILL NOT OVERTURN AN ORDER
OF THE TRIAL COURT DENYING PROBATION IN THE ABSENCE
OF AN ABUSE OF DISCRETION.
State v. Laflin, 201 Neb. 824, 272 N.W.2d 376 (1978)
State v. Evans, 215 Neb. 433, 338 N.W.2d 788 (1983)
the
IV.
THE PUNISHMENT FOR AN OFFENSE CREATED BY
STATUTE IS LEFT TO THE DISCRETION OF THE TRIAL
COURT TO BE EXERCISED WITHIN CERTAIN PRESCRIBED
LIMITS.
State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979)
V.
A SENTENCE IMPOSED WITHIN THE STATUTORILY
PRESCRIBED LIMITS WILL NOT BE DISTURBED ON APPEAL
UNLESS THERE HAS BEEN AN ABUSE OF DISCRETION ON THE
PART OF THE SENTENCING JUDGE.
State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979)
State v. True, 210 Neb. 701, 316 N.W.2d 623 (1982)
State v. Evans, 215 Neb. 433, 338 N.W.2d 788 (1983)
State v. Fix, 219 Neb. 674, 365 N.W.2d 471 (1985)
VI.
BECAUSE IT IS DIFFICULT, IF NOT IMPOSSIBLE, TO
ACCURATELY IICOLOR MATCH II RECORDS OF CO-DEFENDANTS
TO DETERMINE THE VARYING DEGREES OF PUNISHMENT EACH
SHOULD RECEIVE, THE SENTENCING JUDGE IS GRANTED
CONSIDERABLE DISCRETION AND LATITUDE IN MAKING THAT
DECISION.
State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1981)
STATEMENT OF FACTS
The defendant, John C. Kroger, was initially charged with
seven counts of aiding and abetting in the acts of John Kroger,
Jr.,
in receiving grain for storage without a warehouseman's
license, in violation of Neb.Rev.Stat.
and
Neb.Rev.Stat.
§88-501
to
§88-517
§28-206
(Reissue 1979)
(Reissue
1981,
1984
Cum.Supp.), and six counts of aiding and abetting John Kroger,
Jr. in acts of theft, in violation of Neb.Rev.Stat. §28-206 and
Neb.Rev.Stat. §28-511 (1984 Cum.Supp.).
-2-
(Complaint, T1-7).
On
May 31,
Counts
found
1984,
12
the County Court of Thurston County dismissed
and 13
reasonable
for aiding and abetting acts of theft but
and
probable
cause
to
believe
defendant committed Counts 1 through 11 (T10).
that
the
The Information
charged the defendant with seven counts of aiding and abetting
in acts of receiving grain for storage without a warehouseman's
license and four counts of aiding and abetting in acts of theft
(T12-18) •
On January 21, 1985, the defendant pleaded nolo contendere
to one count of aiding and abetting in an act of theft, that
contained
in
23:16-18).
Count
10
of
the
Information
(T20;
19:23-20:5;
Count 10 charged that:
Defendant, John C. Kroger, between the dates
of July 20, 1983 and March 21, 1984, while in the
County of Thurston and state of Nebraska, did aid,
abet, procure or cause another, to-wit:
John
Kroger, Jr. to take, or exercise control over,
movable property of another, to-wit:
Glen Bonsall
which property consisted of 715 bushels, more or
less, of soybeans, having a value over $1,000.00,
with the intent to deprive Glen Bonsall thereof.
(T16-17; 22:20-23:15).
Theft by unlawful taking or disposition
is a Class III felony when "the value of the thing involved is
over
one
thousand
Neb.Rev.Stat.
dollars."
§28-518(1)
(1984
Cum.Supp.).
The defendant's plea was made pursuant to a plea agreement
in which the State agreed to dismiss with prejudice Counts 1-9
and 11 of the
Information and to recommend that the maximum
sentence of incarceration not exceed 16
Nebraska Penal and Correctional Complex
also
agreed
to
provide
to
the
-3-
court
to
24 months at the
(20:6-15).
the
rationale
The State
for
its
recommended
sentence
and
agreed
to
tell
the
court
that,
although it was aware of further conduct by the defendant which
could
give
rise
to
criminal
prosecutions
violation of the warehouseman statutes,
intend
to
file
any
such
charges
for
theft
and
it did not presently
against
the
defendant
(20:15-21:9) .
The
guilty
court
(T20;
accepted
36:3-6).
the
defendant's
On May
8,
plea
1985,
the
and
found
him
defendant
was
sentenced to a term of not less than three years nor more than
six
years
at
an
institution
under
the
jurisdiction
of
the
Nebraska Department of Correctional Services and was ordered to
pay costs (104:20-105:1; T21).
The facts underlying the charge are set out in the bill of
exceptions
report.
(32:11-34:6)
and in the presentence investigation
The co-defendant, John Kroger, Jr., built Kroger grain
elevators in 1978-1979 for storing his own grain on his farm.
In
1980,
he
expanded his
surrounding community.
elevator operation
to
include
the
The co-defendant was the only owner of
Kroger Grain, and he was responsible for the general operation
of the business.
He received a
regular weekly salary.
The
co-defendant obtained a grain buyer and seller's license from
the Nebraska Public Service Commission
bonded with the PSC for
warehouseman's license.
by Kroger Grain
as
its
$32,000.
(PSC)
in 1980.
He did not have a
He was
pub Lf,c
From 1982, the defendant was employed
office
manager.
farmers and arranged purchases and sales.
the defendant's father.
-4-
He dealt
with
the
The co-defendant is
The defendant pleaded nolo contendere to Count 10 of the
Information,
Between
which
October
involved
15
and
his
23,
dealings with
1982,
Bonsall
Glen
Bonsall.
delivered
bushels of soybeans to Kroger Grain (32:23-33:2).
1915.19
On July 20,
1983, the defendant and co-defendant sold 500 bushels of the
soybeans at the direction of Bonsall and paid him (33:3-7).
On
July 25, 1983, the defendant and co-defendant sold 700 bushels
of Bonsall's soybeans and paid him (33:7-9).
At that time, 715
bushels of Bonsall's soybeans remained in the possession of the
defendant and co-defendant
(33:9-11).
Between July 20,
1983
and March 21, 1984, the defendant and co-defendant sold the 715
bushels of soybeans and received payment for them, which they
used to pay their own debts.
They did not pay Bonsall the
amount owed to him for those soybeans.
The defendant was a
principal contact and acted on behalf of the co-defendant in
the transaction involving Bonsall
the
715
bushels
According to
victims,
the
of
soybeans
(33: 22-34: 3) •
was
statements of a
over
number
soybeans were selling for
about
The value of
$1,000
(33:19-21).
of
defendant's
the
$7.00 to $8.00 per
bushel during the relevant time period.
Other examples of theft are
investigation
report.
For
set out in the presentence
example,
Schrock
Farms,
Inc.
(Schrock) purchased 20,322 bushels of corn from Kroger Grain on
February 11, 1983, for $50,195.34, plus advance storage costs
of
$5,080.50,
for
a
total
of
$55,275.84.
Schrock
did
not
authorize Kroger Grain to move or market any of the grain.
On
March 23, 1984, when Schrock requested delivery of the grain or
-5-
its value, Kroger Grain did not deliver the grain, nor did it
pay Schrock its value.
were checked.
one of
the
unknown.
In April,
1984, Kroger Grain's bins
14,221 bushels of Schrock's corn were located in
bins,
20,738
but the whereabouts of 6,101
bushels
of
corn
purchased
by
Kroger Grain on January 27, 1983 were also gone.
bushels were
Schrock
from
At $2.89 per
bushel (the value of the grain when stolen), the total value of
the corn lost to Schrock in the two transactions cited above
was $118,163.40.
Other individuals had their grain stored at Kroger Grain
at
the
time of its closing.
They
stored their grain there
until they could sell it at a favorable price.
individuals paid storage fees on their
grain~
Many of these
these fees were
calculated as a given amount per bushel per month.
numerous invoices which include storage charges are
the presentence investigation report.
the
individuals who
Copies of
found
in
The defendant never told
stored their grain with him that Kroger
Grain was not a licensed warehouse.
Although the defendant and
co-defendant claimed to have taken title to much of the grain
upon its delivery to Kroger Grain, they admitted that contracts
were
never
negotiated
with
numerous
farmers.
A number
of
checks that were issued by the defendant and co-defendant to
farmers who sold their grain to Kroger Grain were returned by
the bank at the time of the closing of the operation in March,
1984.
On
March
21,
1984,
the
supervisor
of
the
warehouse
department of the Nebraska Public Service Commission filed an
-6-
order requiring the co-defendant to show cause why his grain
buyer and seller's license should not be revoked.
On April 24,
1984, the co-defendant voluntarily surrendered his license, and
on May 2, 1984, a hearing was held on the Order to Show Cause.
There was testimony that the
co-defendant had been issued a
grain buyer and seller's license on July 8, 1983, at which time
the co-defendant registered three trucks and supplied a $32,000
bond.
The
bond
did
not
cover
warehousing.
The
PSC
had
received complaints that Kroger Grain had not paid individuals
who
had
sold
their
grain
to
it.
The
PSC investigated
complaints and found them to be authentic.
the
The PSC ordered the
bonding company to pay $32,000 to the Commission; no action was
taken against the co-defendant because he had surrendered his
license.
The
PSC ordered
that
the proceeds of the bond be
distributed pro rata among the 37 named parties whose claims
were
allowed.
The
Commission
disallowed
claims
of
those
individuals for losses of grain stored at Kroger Grain because
they
chose
to
do
business
with
an
unlicensed
operation
(Presentence Investigation Report, Appendix F).
The
co-defendant
individuals
in
the
proceedings
against
filed
for
community
him
upon
bankruptcy
began
the
after
involuntary
closing
of
several
bankruptcy
Kroger
Grain.
According to documents filed with the Bankruptcy Court, there
were
89
account creditors with claims of $1,044,750.93,
four other general creditors with claims of $72,497.04,
total of $1,117,247.97.
of
corn
at
and
for a
The value was based on a market value
$2.50/bushel
and
-7-
soybeans
at
$5.80/bushel.
According to a
bankruptcy
restitution chart compiled
proceedings,
there
were
from
98
the
PSC and
victims
in
all
(Presentence Investigation Report, Appendix F) •
The
only
issue
on
appeal
relates
to
the
defendant's
sentence.
ARGUMENT
THERE HAS BEEN NO ABUSE OF DISCRETION ON THE
PART OF THE TRIAL COURT IN THE IMPOSITION OF THE
SENTENCE ON THE DEFENDANT.
The
defendant
pleaded
nolo
contendere
to
one
count
of
aiding and abetting in an act of theft by unlawful taking or
disposition--a Class III felony.
Neb.Rev.Stat.
Cum.Supp.),
states:
§28-206
and
§28-518
The statutes he violated are
(Reissue
(1984
1979) ,
Cum.Supp.).
§28-511(1)
Section
( 1984
28-511 (1)
"A person is guilty of theft if he or she takes,
or
exercises control over,
movable property of another with the
intent
or
to
states:
deprive
him
her
thereof."
Section
28-518(1)
"Theft constitutes a Class III felony when the value
of the thing involved is over one thousand dollars.
28-206 states:
"Section
"A person who aids, abets, procures, or causes
another to commit any offense may be prosecuted and punished as
if he were the principal offender."
The maximum penalty
years
both."
imprisonment,
for
a
Class
III
felony
is
or twenty-five thousand dollars
The minimum penalty is one year imprisonment.
State. §28-105 (1)
(Reissue 1979).
"twenty
fine,
or
Neb.Rev.
The defendant was sentenced
to a term of not less than three years nor more than six years
in an institution under the jurisdiction of the Department of
-8-
Correctional
Services
and
was
ordered
to
pay
costs.
The
sentence is well within the statutory maximum for this class of
felony.
The defendant's nolo contendere plea was made pursuant to
a plea agreement in which he agreed to plead nolo contendere to
one count of aiding and abetting in exchange for the State's
dismissal of Counts 1-9 and 11 of the Information.
The State
also agreed to recommend a sentence not harsher than a period
of 16 to 24 months and to provide to the court the rationale
for its recommendation.
At the defendant's arraignment,
the court twice informed
him that it was not bound by the State's recommendation in the
plea agreement
the
defendant
(21:16-21;
that
because
dropping of charges,
the
circumstances
24:20-25).
the
The court also informed
plea
agreement
involved
the
the court could still take into account
surrounding
the
original
charges
when
it
determined the defendant's sentence (21:23-22:1; 25:2-5).
The defendant's argument on appeal is that his sentence is
excessive and an abuse of discretion, not just under its own
terms
but
also
co-defendant.
the
State's
in
comparison
with
that
received
by
the
He argues that the court should have accepted
recommended
sentence.
He
also
argues
that
he
should have been placed on probation, rather than be sentenced
to prison,
and that the restitution plan he prepared should
have been accepted.
Before
the
district
court
determines
the
appropriate
sentence, it must examine the background of the defendant and
-9-
the character of the crime committed.
The trial court has the
discretion to determine whether or not to grant probation and
to impose sentences within the statutory limits.
The types of
factors which the trial court must consider for sentencing are
set
out
in
State
v.
Kramer,
203
Neb.
658,
279
N.W.2d
634
(1979) •
In considering a proper sentence, the trial court
is
not
limited
in
its
discretion
to
any
mathematically applied set of factors.
It is
necessarily a subjective judgment and includes the
observations
of
the
sentencing
judge
as
to
demeanor, attitude, and all facts and circumstances
surrounding the life of the defendant.
[ei tation
omitted.]
A sentencing judge has broad discretion
as
to
the
source
and
type of evidence
or
information which may be used as assistance in
determining the kind and extent of the punishment
to be imposed and the judge may consider probation
officer reports, police reports, affidavits, and
other information,
including his own personal
observations.
203 Neb.
at 660-661;
State v.
Harrington,
202 Neb.
356,
275
208 Neb.
598,
304
341,
338
N. W. 2d
294
(1979) ;
State v.
Stranghoener,
N.W.2d
679
(1981) ;
State v.
Goodpasture,
215
Neb.
N. W. 2d 446 (1983) •
Here
the
presentence
September
district
court
had
investigation report.
22,
1956.
He
farms
before
it
the
defendant's
The defendant was born on
and
was
employed
as
office
manager of Kroger Grain, which was owned by the co-defendant,
from 1982 until its closing.
Although the defendant does not
have a prior criminal record,
were serious.
the crimes he was charged with
Not only was he charged with aiding and abetting
in the operation of a public warehouse without a license, and
on numerous occasions aiding and abetting in the acceptance of
-10-
grain for storage, he was also charged with aiding and abetting
in acts of theft.
Pursuant to a plea agreement, the defendant
pleaded nolo contendere to one count of aiding and abetting in
an act of theft.
Seven counts of aiding and abetting in the
receipt of grain for storage without a warehouseman's license
and three counts of aiding and abetting in acts of theft were
dropped.
The estimated loss in monetary terms to the victims
of the defendant and co-defendant was $1,117,250.
After the co-defendant filed
for bankruptcy,
neither he
nor the defendant met with their victims or others in their
community in order to explain their financial difficulties and
the collapse of Kroger Grain.
A number of individuals were
never notified by the defendant or co-defendant that Kroger
Grain had shut down, but found out when their checks bounced.
The presentence investigation report contains statements from
numerous
people
who
believed
that
the
defendant
and
co-defendant should receive prison sentences and felt that the
terms of the plea agreement were too lenient.
The
account
Kroger
defendant's
of
his
Grain
was
illegal
failure
to
required
actions
know
to
the
have
a
cannot
law,
be
excused
specifically
warehouseman's
before it could store grain for any length of time.
they
be
allegedly
excused
on
conned
into
the
basis
trading on
that
the
the
that
license
Nor can
co-defendant
commodities
on
market
was
in
1983, an action which brought about losses of several hundred
thousand dollars.
-11-
As part of the plea agreement,
the prosecution and the
defendant and co-defendant submitted a Restitution Plan and a
Statement of
Report,
Intent
Appendix
to
the
I) •
court
In
(Presentence
sentencing
the
Investigation
defendant
and
co-defendant, the court stated that the plan was "unrealistic
and speculative"
(103:4-5).
In this regard,
the trial court
was entirely correct.
According to its terms,
from
1985
to
1989.
It
the Restitution Plan
states
that
the
is to run
defendant
and
co-defendant "shall use their best efforts to make restitution
to the victims of their crimes."
The plan proposes that the
defendant and co-defendant will lease approximately 900 acres
for farming.
The success of the plan depends on their ability
to obtain the
necessary
The
and
defendant
loans,
co-defendant
which is nowhere guaranteed.
also
would
use
their
efforts" to obtain employment when they are not farming.
"best
This,
too, is not guaranteed.
The projected receipts over the five-year period are to be
distributed according to a priority listing which is set out in
the Restitution Plan.
Landlords would be paid first.
Next in
line are payments of expenses under the plan; these include, in
order:
secured creditors,
social
security
and
unsecured expenses such as
obligations
related
to
farming,
taxes,
other
expenses "ordinarily and necessarily incurred or incurred for
the benefit" of the plan, which includes fees for their lawyers
and accountants, and other approved costs and expenses.
Next
in the priority list are living expenses for the defendant and
-12-
co-defendant, in the amount of approximately $13,000/year net
for each.
The remainder of the gross receipts from the farming
operations of the defendant and co-defendant is to be paid to
the victims on a pro rata basis.
According
to
the
Statement
of
Intent,
the
original
estimate of farming 1,500-1,800 acres/year which would generate
$80,000-100,000/year for restitution was reduced to 900 acres
for
at
least
restitution.
restitution
1985,
with
$45,000-60,000
available
for
The Statement of Intent clearly reveals that full
is
not
anticipated;
rather,
the
defendant
and
co-defendant would only be making "significant sacrifices" and
providing a chance of "some recovery of losses by the victims."
The Statement of Intent even suggests that if the defendant and
co-defendant exceed their expectations in earnings outside the
farm,
the
court
should
allowance as a reward.
consider
Meanwhile,
increasing
their
living
provision for payments to
the victims remains at the bottom of the priority list.
The Restitution Plan is unrealistic and speculative.
It
does not guarantee that the victims will receive even one cent
as
restitution
from
the
defendant
and
co-defendant.
In
addition, after the five-year period for restitution ends, the
defendant and co-defendant would be free of any obligation to
repay their victims.
The defendant and co-defendant have not shown any remorse
for their activities.
they
consider
to
be
They blame their difficulties on what
favors
they
-13-
have
done
to
accommodate
farmers who delivered grain to them and on their losses in the
commodities market.
In
determining whether
or
not
to
grant
probation,
the
trial court examines various grounds which are set out in Neb.
Rev.Stat.
§29-2260 (3)
(1984 Cum.Supp.).
These factors
"serve
as guidelines and do not control the discretion of the court."
State v. Welsh, 202 Neb. 249, 251, 251 N.W.2d 54
decision as
to probation which
(1979).
the court must make
is
based on the factors S€t out in Neb.Rev.Stat. §29-2260(2)
The
then
(1984
Cum.Supp.) .
In denying probation, the trial court specifically set out
and commented on a number of the factors listed in §29-2260(3).
The court stated:
I have considered the grounds set forth in
Section 29-2260 of the statutes of the State of
Nebraska which should be accorded weight in favor
of withholding a sentence of imprisonment.
The
pre-sentence report contained many letters from
your
friends
and neighbors
and the eloquent
statement of your attorney here this morning
attesting to your good character, your reputation
and personal history.
They state correctly that
you have suffered humiliation, embarrasment [sic],
and that you have lost community reputation and
respect.
It is important to understand that these
non-penal collateral punishments to some extent
affect every defendant who appears for sentencing.
They
may
be
considered
in
determining
the
appropriate sentence in many cases.
To insist,
however, that these collateral detriments somehow
eliminate the need for statutory punishment is
without merit.
You have violated Nebraska law.
You have violated the trust and confidence placed
in you by your friends, your neighbors, and your
customers.
You are both presently observed in your own
personal dilemma. But human nature, being what it
is,
you will
adjust.
You will
accept the
circumstances.
You will go on.
And your life,
-14-
though
changed,
will
go
on.
Hopefully
the
proceedings here today will help put an end to the
bi tterness and the division that is wi thin this
communtiy [sic] by bringing a certain sense of
finality to this entire matter.
You have done a terrible wrong to the innocent
victims and to the people of this state, and the
punishment that you receive must be real and
visible and not subject to misinterpretation by any
who shall learn of its imposition.
The extended
period of time covered by the acts revealed in the
pre-sentence investigation report leave [sic] the
Court to conclude that you did have the opportunity
and the knowledge to acknowledge the error of your
ways and to attempt to rectify your wrongs.
This
you did not do.
Although these are not offenses that cause any
immediate serious physical harm to any victim, you
engaged
in
an
intentional,
deliberate
and
premedi tated course of conduct stretched over a
period of months and which constitutes numerous
acts
of
unlawful
taking
or
deception.
You
displayed a callous abuse of the trust placed in
you by your friends, your neighbors and your
customers. There is no indication in the record or
in the pre-sentence investigation report that you
acted under strong provocation, nor are there any
mi tigating circumstances which tend to excuse the
offense but do not provide a defense. Your victims
did not induce you to commit the offense.
On the
contrary, these victims placed in you a great
amount of confidence and trust, both of which you
violated.
Many of the letters in the file correctly
state that you cannot make restitution if you are
imprisoned.
This is true.
However, you have not
compensated the victims of your crime nor have you
shown the Court a realistic program of restitution.
I find the plan of restitution submitted to be
unrealistic and speculative.
I find that I have the greatest sympathy and
compassion for your families, but I don't for you.
You had the opportunity during the course of your
dealings to change the course on which you were
headed.
The Court finds that any other sentence
than incarceration will depreciate the seriousness
of the crimes and promote disrespect for the law.
(101:3-103:11) •
-15-
This Court has held on numerous occasions that the trial
court has discretion as to granting or denying probation and as
to
sentencing
so
statutory limits.
long
as
the
sentence
falls
within
the
"This court will not overturn an order of
the trial court denying probation in the absence of an abuse of
discretion."
State v.
Laflin,
201 Neb.
824,
828,
272 N.W.2d
376 (1978).
Furthermore, this Court has held that it will not overturn
a sentence unless there was an abuse of discretion on the part
of the trial court.
"The punishment for the offense created by
statute is left to the discretion of the court to be exercised
within certain prescribed limits."
Neb. at 250.
probation
State v. Welsh, supra, 202
"It has long been the rule that an order denying
and
a
sentence
imposed
within
the
statutorily
prescribed limits will not be disturbed on appeal unless there
has been an abuse of discretion on the part of the sentencing
judge."
State v. Evans, 215 Neb. 433, 444-445, 338 N.W.2d 788
(1983); State v. Welsh, supra; State v. True, 210 Neb. 701, 316
N.W.2d 623
(1982); State v. Fix, 219 Neb.
674, 365 N.W.2d 471
(1985) •
The
defendant's
sentence
also
is
compared to that of the co-defendant,
not
excessive
John Kroger,
Jr.
when
The
defendant's involvement in the acts upon which the charges were
brought
was
equal
to
that
of
the
co-defendant.
Where
two
individuals are equally involved in a crime, it is not an abuse
of
discretion
sentences.
See
for
the
State v.
trial
Nix,
court
215 Neb.
-16-
to
impose
410,
identical
338 N.W.2d
782
(1983).
As this Court stated in State v. Stranghoener, supra,
"Concededly, it is difficult, if not impossible, to accurately
'color match' records of codefendants to determine the varying
degrees of punishment each should receive.
In this regard, the
court is granted considerable discretion and latitude in making
that decision."
The
208 Neb. at 605.
defendant was
co-defendant
in
charged with
receiving
grain
aiding
for
and
abetting the
storage
warehouseman's license and in acts of theft.
without
a
Even though the
defendant was not an owner of Kroger Grain, he was the office
manager, and as such was involved in the buying and selling of
grain
and
the
Kroger Grain.
contacts
with
farmers
who
did
business
In the presentence investigation report
with
there
are statements from a number of individuals who said that their
dealings
were
with
the
defendant.
Norma
Ahlers,
a
former
employee at Kroger Grain, was of the opinion that the defendant
was more at fault
(Appendix D).
The defendant and co-defendant
admit equal responsibility in their Restitution Plan.
Because
their actions were comparable if not equal, the trial court did
not err in imposing the same sentence upon the defendant as it
did upon the co-defendant.
In conclusion,
the sentence imposed on the defendant was
proper and not an abuse of discretion on the part of the trial
court; it should not be modified on appeal.
-17-
CONCLUSION
For
the
reasons
stated
herein,
the
State
of
Nebraska
respectfully requests this Court to affirm the sentence of the
trial court.
Respectfully submitted,
STATE OF NEBRASKA, Appellee,
BY ROBERT M. SPIRE
Attorney General
Attorneys for Appellee
-18-
PROOF OF SERVICE
STATE OF NEBRASKA
)
) ss ,
COUNTY OF LANCASTER )
I,
, being first duly sworn, depose
and state that two copies of the Brief of Appellee in the above
entitled
case
were
served
upon
the
appellant
herein
by
depositing said copies in the United States Mail, certified and
return
receipt
postage
prepaid,
addressed
to
appellant's
attorney of record, Robert M. Hillis, Yost, Schafersman, Yost,
Lamme and
Hillis,
P.C.,
81
West
Fifth
Street,
Fremont,
68025.
Dated this
day of _ _ _ _ _ _ _ _ _ _ _ , 1985.
Affiant
Subscribed in my presence and sworn to before me this
day of
---------- ,
1985.
Notary Public
-19-
NE