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State v. Baxter

Supreme Court of Nebraska

January 6, 2017

State of Nebraska, Appellee,
v.
Shannon L. Baxter, Appellant.

         1. 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.

         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. 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.

         4. 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.

         5. 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.

         6. 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.

         7. 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.

         [295 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 for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Miller-Lerman, J.

         NATURE OF CASE

         Shannon 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.

         STATEMENT OF FACTS

         Pursuant 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.

         On 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.

         Because 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.

         Following 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.

         Baxter appeals her sentences.

         [295 Neb. 499] ASSIGNMENTS OF ERROR

         Baxter 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 ...


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