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.
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.
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.
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.
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.
Neb. 83] Per Curiam.
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
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.
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
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.
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
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 ...