Criminal Law: Motions for Continuance: Appeal and Error. A
decision whether to grant a continuance in a criminal case is
within the discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion.
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.
Motions for Continuance: Appeal and Error. A court does not
abuse its discretion in denying a continuance unless it
clearly appears that the party seeking the continuance
suffered prejudice because of that denial.
Criminal Law: Motions for Continuance: Appeal and Error.
Where the criminal defendant's motion for continuance is
based upon the occurrence or nonoccurrence of events within
the defendant's own control, denial of such motion is no
abuse of discretion.
Sentences: Appeal and Error. A determination of whether there
are substantial and compelling reasons under Neb. Rev. Stat.
§ 29-2204.02(2)(c) (Supp. 2015) is within the trial
court's discretion and will not be reversed on appeal
absent an abuse of discretion.
Sentences. The court may fulfill the requirement of Neb. Rev.
Stat. § 29-2204.02(3) (Supp. 2015) to state its
reasoning on the record by a combination of the sentencing
hearing and sentencing order.
Sentences: Presentence Reports. The court's determination
of substantial and compelling reasons under Neb. Rev. Stat.
§ 29-2204.02(2)(c) (Supp. 2015) should be based on a
review of the record, including the presentence investigation
report and the record of the trial, and its determination
must be supported by such record.
Neb. 497] Appeal from the District Court for Franklin County:
Stephen R. Illingworth, Judge. Affirmed.
Richard Calkins, of Calkins Law Office, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
L. Baxter appeals the sentences imposed by the district court
for Franklin County upon her plea-based convictions for
possession of a controlled substance and unlawful acts
relating to drugs. The court imposed sentences of
imprisonment for each conviction and ordered the sentences to
be served concurrent with one another. On appeal, Baxter
claims, inter alia, that the court did not follow Neb. Rev.
Stat. § 29-2204.02 (Supp. 2015), enacted as part of 2015
Neb. Laws, L.B. 605, when it found that with regard to the
Class IV felony possession conviction, she was not a suitable
candidate for probation and should instead be sentenced to
imprisonment. We affirm Baxter's sentences.
to a plea agreement, the State dropped certain charges
against Baxter and filed an amended information charging her
with two counts: (1) possession of a controlled substance, in
violation of Neb. Rev. Stat. § 28-416(3) (Supp. 2015), a
Class IV felony, and (2) unlawful acts relating to drugs, in
violation of Neb. Rev. Stat. § 28-417(1)(f) (Reissue
2016), a Class III misdemeanor. The State alleged in count I
that on or about September 28, 2015, Baxter had knowingly and
intentionally possessed a controlled substance. The State
alleged in count II that on or about May 29, 2015, Baxter had
possessed a prescribed controlled substance in a [295 Neb.
498] container other than that in which it was delivered to
her by a practitioner.
November 5, 2015, Baxter pled no contest to the two counts.
The district court accepted her pleas and found her guilty of
both offenses. The court set sentencing for February 4, 2016.
On January 25, Baxter filed a motion for continuance of the
sentencing "to allow [her] sufficient time to obtain an
[sic] drug and alcohol evaluation, and time for the probation
office to complete a presentence investigation." The
court overruled the motion and confirmed that sentencing was
set for February 4.
Baxter's conviction for possession of a controlled
substance was a Class IV felony which arose from events that
occurred on September 28, 2015, sentencing on that conviction
was subject to § 29-2204.02, enacted as part of LB. 605,
with an effective date of August 30, 2015. Section
29-2204.02, which is set forth in full in our analysis below,
provides in part that when the offense is a Class IV felony,
the court shall impose a sentence of probation unless, inter
alia, there are "substantial and compelling
reasons" that community supervision will not be an
effective and safe sentence.
the sentencing hearing, the court in this case found that
Baxter was not a suitable candidate for probation and that
there were substantial and compelling reasons why she could
not effectively and safely be supervised in the community on
probation. The court therefore sentenced Baxter to
imprisonment for 2 years followed by 12 months of postrelease
supervision following her release from incarceration for the
possession conviction, and to imprisonment for 3 months for
the unlawful acts conviction. The court ordered the sentences
of imprisonment to be served concurrent with one another. The
sentences imposed were the maximum allowable sentences under
Neb. Rev. Stat. § 28-105 (Supp. 2015) for a Class IV
felony and under Neb. Rev. Stat. § 28-106 (Supp. 2015)
for a Class III misdemeanor.
appeals her sentences.
Neb. 499] ASSIGNMENTS OF ERROR
claims, summarized, that the district court erred when it (1)
overruled her motion to continue the sentencing hearing and
(2) found that she was not a suitable candidate ...