OT T
SUPREME COURT OF NEBRASKA
STATE OF NEBRASKA,
Appellee,
v.
WILLIAM S. PERRY,
Appellant.
APPEAL FROM THE DISTRICT COURT
OF SARPY COUNTY, NEBRASKA
Honorable George A. Thompson, District Judge
BRIEF OF APPELLEE
10
A. EUGENE CRUMP, #15039
Deputy Attorney General
CHARLES E. LOWE, #12518
Assistant Attorney General
2115 State Capitol
Lincoln, Nebraska 68509-4906
Tel:
( 4 0 2 ) 4 71- 2 6 8 2
Attorneys for Appellee
~UPREMf
COURT OF NEBRASKA
FrL.ED
~ E3
.· .
1:· 1:.
{) 1985
INDEX
Page
Subject Index
Statement of the Case--------------------------------Propositions of
Law---~-------------------------------
Statement of Facts------------------------------------
1
1
1
Argument:
The sentence imposed in this case does not
constitute an abuse of discretion----------------
2
Conclusion--------------------------------------------
6
Proof of Service--------------------------------------
7
Cases Cited
State v. Clark, 217 Neb. 417, 350 N.W.2d 521
(1984)---
1,2
State v. Etchison, 188 Neb. 134, 195 N.W.2d 498
(1972)----------------------------------------------
3
State v. Kramer, 203 Neb. 658, 279 N.W.2d 634
(1979)--
1,3
(1982)---
2,3
State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 683
(1981)----------------------------------------------
3
State v , Parks, 212 Neb. 635, 324 N.W.2d 673
Statutes Cited
Neb.Rev.Stat. §28-105
(Reissue 1979)------------------
Neb.Rev.Stat. §28-416(3)
Neb.Rev.Stat. §29-2308
(Supp.
1984)----------------~
(Supp. 1984)-------------------
(i)
2
2
2
STATEMENT OF THE CASE
The appellee accepts appellant's statement of the case.
PROPOSITIONS OF LAW
r.
A SENTENCE IMPOSED WITHIN STATUTORY LIMITS WILL
NOT BE SET ASIDE ABSENT AN ABUSE OF DISCRETION.
State v.
(1984)
Clark,
217 Neb.
417,
350 N.W.2d 521
II.
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.
State v. Kramer,
(1979)
203 Neb.
658,
279 N.W.2d 634
STATEMENT OF FACTS
The
appellee accepts appellant's
statement of facts
with
the following additions and clarifications.
There
is
no
evidence
attorney's own statement
in
the
record,
save
appellant's
(16:25-17:4), that appellant's role in
the burglary for which he was arrested on November 23, 1983, was
minor in nature.
Some of the police reports in the Presentence
Investigation Report suggest that appellant played a substantial
role in the burglary, particularly in attempts to open the safe
after
it was
removed
from
the
premises.
involved more than merely removing a safe.
a
cash register,
a
candy machine
and a
Also,
the
burglary
Money was taken from
pop machine as well.
Presentence Investigation Report, p. 59.
The incident involving cocaine came about as a result of
appellant's flying to Chicago to purchase several ounces of the
drug
for
resale
in
Bellevue,
Nebraska,
for
several
thousand
dollars (8:10-9:23; Presentence Investigation Report, p. 8).
-1-
Appellant's employment with Sun Brite Carpet Cleaners came
to an end under circumstances wherein his employer gave him the
chance to voluntarily quit rather than being fired
(Presentence
Investigation Report, p. 3).
ARGUMENT
THE SENTENCE IMPOSED IN THIS
CONSTITUTE AN ABUSE OF DISCRETION.
CASE DOES
NOT
The sole issue in this appeal is whether or not the trial
court abused its discretion and
imposed an excessive sentence
upon appellant-defendant, William S. Perry [hereinafter referred
as "defendant"].
Defendant was convicted upon his guilty plea to an amended
charge
of
(T4,5,9).
possessing
a
controlled
substance,
namely
cocaine
Possession of such a controlled substance is a Class
IV felony having a maximum penalty of five years imprisonment
and/or
a
$10,000
§28-416 (3)
(Supp.
Defendant was
fine
and
no minimum penalty.
1984); Neb.Rev.Stat.
sentenced
to
a
term
§28-105
of
months to five years (T5; 18:20-24).
Neb.Rev.Stat.
(Reissue 1979).
imprisonment
of
twenty
Thus, defendant received a
sentence clearly within the statutory limits for the crime.
This court, on appeal, may reduce a sentence imposed by a
district court when, in its opinion, that sentence is excessive.
Neb.Rev.Stat.
§29-2308
well-established,
statutory
limits
discretion."
(1984).
(Supp ,
however,
will
1984).
that
not
be
"a
set
The
sentence
aside
State v. Clark, 217 Neb.
rule
imposed
absent
an
is
within
abuse
of
417, 423, 350 N.W.2d 521
See, State v. Parks, 212 Neb. 635, 643, 324 N.W.2d 673
(1982) .
Defendant
sentencing
suggests
discretion
by
that
failing
factors
as defendant's age,
record,
his
employment
the
his
trial
to
court
consider
did
abuse
adequately
its
such
lack of an extensive criminal
record,
his
middle
class
social
and
cultural background, his education, and the nature of the crime.
Brief of Appellant, pp. 5 & 8.
-2-
In State v. Stranghoener, 208 Neb. 598, 605, 304 N.W.2d 683
(1981), the court (quoting from State v. Etchison, 188 Neb. 134,
195 N.W.2d 498
(1972)) discussed some of the factors which merit
consideration in determining a proper sentence:
The primary function of the criminal law is to
protect
individuals
and
society
from
the
depredations of the criminally bent.
In furtherance
of this purpose, it is deemed necessary to mete out
punishment as a deterrent to others and to lock up
incorrigible criminals.
On the other hand, the
rehabilitation of criminals is one of society's
major
safeguards.
Among
factors
meriting
consideration are the family ties, age , mentality,
education,
experience,
and social and cultural
background
of
the
convicted
individual;
his
willingness to work at honest labor;
his past
criminal
record
or
law
abiding
conduct;
the
motivation for the offense, the nature of the
offense,
and the amount of violence,
if any,
involved; the frankness and willingness of the
defendant to cooperate; narcotic addiction, if any;
circumstances aggravating or mitigating the offense;
community attitudes toward the offense; and the
individual's
potentialities
for
reform
or
recidivism.
However,
while
listing the above
factors,
this court has
also explained:
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.
State v. Kramer, 203 Neb. 658, 660, 279 N.W.2d 634
in State v.
Parks,
supra,
(1979).
And
a case which also involved the sale
and distribution of controlled substances, the court pointed out
that this fact of sale and distribution of narcotic drugs alone
may justify a harsher sentence.
It is true that the sentences imposed in this
case are somewhat above what would be considered
minimum
sentences.
However,
if
the
sale
and
distribution of drugs is to be discouraged, one of
-3-
the main factors to consider and eliminate is the
profit motive.
This seems to have been one of the
considerations which was of importance to the trial
judge. The presentence report would seem to justify
his belief that, contrary to the denial of the
defendant, the defendant was in fact involved in
more than a single isolated sale.
Under the circumstances, we cannot say that the
sentences imposed constituted an abuse of discretion
by the trial court.
Id., 212 Neb. at 644.
In imposing the sentence in this case, the trial court was
obviously
much
deliberately
concerned
traveled
with
to
Chicago
amount
of cocaine
for
price
(17:18-24;
18:9-19;
happenstance
sale
resale
of
a
the
in
fact
to
purchase
Nebraska
21:6-10).
controlled
that
fo.r
This
defendant
a
considerable
a
considerable
was
substance,
had
no
but
casual,
rather
deliberate attempt to traffic in cocaine for a profit.
a
As the
trial court pointed out, defendant was extremely lucky in the
circumstances to be able to plea bargain the charge down from a
much
more
serious
exceptionally
court,
Class~I
hazardous
which had the
drug
felony
of
(18:2-7).
distribution
Moreover,
opportunity to observe
the
of
an
trial
the demeanor and
attitude of defendant, concluded that if probation were granted
there would be substantial risk that defendant would commit
other criminal offenses (18:17-19).
The record shows clearly that,
in
fact,
the
trial
judge
took into consideration all relevant factors when deciding the
sentence.
The trial judge stated:
This is a serious offense and the circumstances
dictate that imprisonment would be necessary.
I've
reviewed
all
the
other
statements
received,
including those today, and having regard to the
nature and circumstances of the crime and having
regard
to
the
history
and
character
of
the
defendant, finds imprisonment is necessary for the
protection of the public because a lesser sentence
will depreciate the seriousness of the crime or
promote disrespect
for
the
law and there
is
-4-
substantial risk that if probation were granted, you
would engage in additional criminal conduct.
Therefore, the order of this Court is that
William S. Perry be committed to the Nebraska
Department of Corrections for a period of not less
than twenty months to five years at hard labor, no
part of which is solitary confinement.
(18:9-24.)
The
See, also, the district court's Journal Entry (T5).
very
factors
mentioned by
defendant
as
a
basis
for
mitigating the sentence can just as easily be viewed as reasons
justifying the sentence imposed.
The judgment of the sentencing
court, as indicated above, is necessarily a subjective one; and
the mere existence of certain factors which may be mitigating in
some circumstances does not mean that these same factors will be
mitigating in other circumstances.
Defendant's
age
of
22
in
this
case
shows
that
he
is
sufficiently mature to be fully responsible for his actions and
fully cognizant of the seriousness of his criminal conduct.
same
comment
background
and
applies
his
to
defendant's
education.
While
social
and
defendant's
The
cultural
employment
record might show that defendant can be a responsible individual
at times, it also highlights the deliberate and callous nature
of his decision to engage in criminal activity since he did not
need to do so in order to survive or support a family.
As to defendant's criminal record, that record shows that
within a period of some seven months defendant was involved in
two serious crimes--burglary and distribution of cocaine.
These
are more than mere "mistakes;" and the fact that these incidents
occurred within such a short time indicates that,
reason,
defendant
was
developing
a
definite
felonious behavior requiring incarceration.
for whatever
penchant
for
The crimes may not
be violent in nature, but they certainly are not "victimless."
Both individuals and society as a whole suffer from the loss of
property and privacy caused by burglaries and from the addiction
and personal problems caused by illegal sale, distribution and
-5-
use of controlled substances.
Defendant's criminal conduct was
destructive and demonstrated his avaricious nature.
Finally, it should be noted that, while defendant received
the
maximum
sentence
for
the
crime
to
which
he
pled
guilty
pursuant to a plea bargain, he came nowhere near receiving the
maximum
actually
sentence
he
occurred
could
have
(distribution
received
of an
for
the
crime
that
exceptionally hazardous
drug, a Class II felony).
Considering all the circumstances and the
this
case,
it
is
clear
that
the
sentence
full
record
imposed
is
in
not
excessive and does not constitute an abuse of discretion by the
trial court.
CONCLUSION
For the reasons set forth above, the appellee respectfully
urges the court to affirm the judgment and sentence imposed by
the district court.
Respectfully submitted,
A. EUGENE CRUMP, #15039
Deputy Attorney General
By
etL-E
~
Charles E. Lowe, #12518
Assistant Attorney General
2115 State Capitol
Lincoln, NE 68509-4906
Tel: (402) 471- 2 6 8 2
Attorneys for Appellee
-6-
PROOF OF SERVICE
STATE OF NEBRASKA
)
) ss.
COUNTY OF LANCASTER
)
I,
,
being
first
duly swor n ,
depose and state that two copies of the Brief of Appellee in the
above entitled case were served upon the appellant by depositing
said
copies
in
the
United
receipt postage prepaid,
of record,
Robert C.
States Mail,
certified
and
return
addressed to the appellant I s attorney
Wester,
Schirber Law Offices,
P.C.,
716
Tara Plaza, Papillion, Nebraska 68046.
Dated this
day of February, 1985.
Affiant
Subscribed
in
my
presence
and
sworn
day of February, 1985.
Notary Public
-7-
to
before
me
this