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State v. Dyer

Supreme Court of Nebraska

October 27, 2017

State of Nebraska, appellee,
v.
Anthony P. Dyer, appellant.

          1. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         2. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         3. 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) why a defendant cannot effectively and safely be supervised in the community is within the trial court's discretion, and a decision to withhold probation on such basis will not be reversed on appeal absent an abuse of discretion.

         Petition for further review from the Court of Appeals, Moore. Chief Judge, and Riedmann and Bishop, Judges, on appeal thereto from the District Court for Lancaster County, John A. Colborn, Judge. Judgment of Court of Appeals affirmed.

          Mark E. Rappl for appellant.

          Douglas J. Peterson, Attorney General, Erin E. Tangeman, and, on brief, George R. Love for appellee.

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

         [298 Neb. 83] Per Curiam.

         NATURE OF CASE

         Anthony P. Dyer pled no contest to a charge of enticement by electronic communication device in the district court for Lancaster County. The court sentenced Dyer to 2 years' imprisonment and 12 months' postrelease supervision. Dyer appealed his sentence to the Nebraska Court of Appeals and claimed that the district court had imposed an excessive sentence. Dyer argued that because the charge to which he pled was a Class IV felony, Neb. Rev. Stat. § 29-2204.02 (Supp. 2015) required the court to impose a sentence of probation unless there were substantial and compelling reasons why he could not effectively and safely be supervised in the community. Dyer asserted that the district court in this case failed to articulate such substantial and compelling reasons. The Court of Appeals rejected Dyer's arguments and affirmed the sentence imposed by the district court. State v. Dyer, 24 Neb.App. 514, 891 N.W.2d 705 (2017).

         We granted Dyer's petition for further review. Although we clarify the standards with respect to sentencing pursuant to § 29-2204.02, we agree with the Court of Appeals' ultimate determination that the district court did not abuse its discretion, and we therefore affirm the Court of Appeals' disposition of this appeal.

         STATEMENT OF FACTS

         Dyer pled no contest to a charge of enticement by electronic communication device pursuant to a plea agreement in which the State agreed not to pursue any additional charges arising out of the underlying investigation. The factual basis for the plea was, generally, that on November 17 and 18, 2015, Dyer, who was 30 years old at the time, communicated online and through text messages with an investigator Dyer believed to be a 13-year-old girl. The communications included discussion of sexual activity, and Dyer sent a picture of his genitalia to the investigator. Dyer arranged a meeting at a specific location, [298 Neb. 84] and he was arrested when he arrived at the arranged meeting place. The court accepted the plea.

         Thereafter, the district court sentenced Dyer to 2 years' imprisonment and 12 months' postrelease supervision. In its sentencing order, the court stated that it found, "pursuant to NEB. REV. STAT § 29-2260 [(Supp. 2015)], " that

substantial and compelling reasons, as checked on the attached sheet, exist why the defendant cannot effectively and safely be supervised in the community on probation and that imprisonment of the defendant is necessary for the protection of the public because the risk is substantial that, during any period of probation, the defendant would engage in additional criminal conduct and because a lesser sentence would depreciate the seriousness of the defendant's crime and promote disrespect for the law.

         The sheet that was attached to, and referenced in, the order stated: "Pursuant to Neb. Rev. Stat. § 29-2260, the court finds the following substantial and compelling reasons (those checked) why the defendant cannot effectively and safely be supervised in the community on probation[.]" Thereunder were listed 21 generically phrased reasons; the court had placed an "X" next to the following 5 of the 21 reasons: (1) "A lesser sentence would depreciate the seriousness of the crime"; (2) "[a] lesser sentence would promote disrespect for the law"; (3) "[i]ncarceration is necessary to protect the safety and security of the public, including the victim(s) in this case"; (4) "[t]he crime caused or threatened serious injury or harm"; and (5) "[t]he circumstances indicate that the defendant understood the consequences of his or her actions and the potential harm to others."

         At the sentencing hearing, which was held the same day the sentencing order was entered, the court stated that in determining the appropriate sentence, it had considered the comments of Dyer and his attorney and the information on Dyer's behalf that was included in the presentence report. The [298 Neb. 85] court stated that it could not ignore "the serious nature of this offense and all of the surrounding facts and circumstances, " and it recounted various factors it considered. These included the benefits to Dyer of the plea agreement, the results of testing and evaluation of Dyer, and specific facts and circumstances surrounding the offense Dyer committed. The court then stated that it found substantial and compelling reasons why Dyer could not be effectively and safely supervised in the community ...


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