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State v. Phillips

Supreme Court of Nebraska

August 11, 2017

State of Nebraska, appellee,
v.
Christian E. Phillips, appellant.

          1. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

         2. Judgments: Appeal and Error. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         3. Sentences. When imposing a sentence, the sentencing judge should consider 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 violence involved in the commission of the offense. The sentencing court is not limited to any mathematically applied set of factors.

         Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Affirmed.

          Joseph D. Nigro, Lancaster County Public Defender, and John C. Jorgensen for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          [297 Neb. 470] Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy. Kelch, and Funke, JJ.

          Heavican, C.J.

         INTRODUCTION

         Christian E. Phillips was found guilty of a violation of the Sex Offender Registration Act (SORA). He was sentenced to 12 months' imprisonment and 12 months' supervised release. He appeals. This case presents our first opportunity to address postrelease supervision as enacted by 2015 Neb. Laws, L.B. 605. We affirm.

         FACTUAL BACKGROUND

         Phillips was convicted of third degree sexual assault of a child in September 2013. Based upon that conviction, he was required to register under SORA as a 25-year registrant. Phillips received notification of that requirement and acknowledged his responsibilities under the act.

         Upon release, Phillips reported a location in Sarpy County, Nebraska, as his address. Upon investigation, that address was found to be fictitious. Phillips was later discovered to be residing at a different address. He never reported this address to any sheriff's office.

         Accordingly, Phillips was charged with the failure to register as required by SORA. He pled no contest pursuant to a plea agreement and was sentenced to 12 months' imprisonment and 12 months' supervised release. In connection with Phillips' supervised release, the district court set multiple conditions:

1. Shall not violate any laws and shall refrain from disorderly conduct or acts injurious to others.
2. Shall avoid social contact with those persons having criminal records or who are on probation or parole, except as expressly permitted by your post-release supervision/ probation officer.
[297 Neb. 471] 3. Shall report in writing and/or in person during the term of post-release supervision/probation as directed by the Court or post-release supervision/probation officer.
4. Shall truthfully answer any inquiries of the post-release supervision/probation officer and allow the post-release supervision/probation officer to visit at all reasonable times and places.
5. Shall be employed, in school or in treatment or a combination of any not less than full time, or provide proof that employment, school admission or treatment is being sought, and permission of the post-release supervision/probation officer shall be obtained before any change of employment, school or treatment.
6. Shall reside at an address provided to the post-release supervision/probation officer, and permission of the post-release supervision/probation officer shall be obtained before any change of address. Travel permits are required for any travel outside of the state of Nebraska.
7. Shall submit to search and seizure of your premises, person, or vehicle upon request of the post-release supervision/probation officer (or law enforcement officer), with or without a warrant, day or night, to determine the presence of alcoholic beverages, controlled substances or other contraband.
8. Shall not use, consume or have in your personal possession any alcoholic beverage or controlled substance (except as prescribed by a duly licensed physician or dentist) and shall submit to a chemical test of blood, breath, or urine at your expense upon request of the post-release supervision/probation officer or law enforcement officer to determine the use of alcoholic liquor or drugs. The prohibition against using, consuming and/or possessing controlled substances includes designer drugs and synthetic drugs.
[297 Neb. 472] 9. Shall submit to random drug and alcohol testing as instructed by your post-release supervision officer but in no ...

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