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State v. Thieszen

Supreme Court of Nebraska

June 1, 2018

State of Nebraska, appellee,
v.
Sydney L. Thieszen, 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: Evidence. A sentencing court has broad discretion as to the source and type of evidence and information which may be used in determining the kind and extent of the punishment to be imposed, and evidence may be presented as to any matter that the court deems relevant to the sentence.

         4. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         5. 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.

         6. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are 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 amount of violence involved in the commission of the crime.

         [300 Neb. 113] 7. ___. Where a defendant was under the age of 18 when he or she committed a Class IA felony, Neb. Rev. Stat. § 28-105.02 (Reissue 2016) dictates that the sentencing judge must also consider mitigating factors, such as the defendant's (1) age at the time of the offense, (2) impetuosity, (3) family and community environment, and (4) ability to appreciate risks and consequences of the conduct, as well as (5) the outcome of a comprehensive mental health evaluation of the defendant conducted by an adolescent mental health professional licensed in Nebraska.

          Appeal from the District Court for York County: James C. Stecker, Judge. Affirmed.

          Jeffery A. Pickens, of Nebraska Commission on Public Advocacy, for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Vaughan, District Judge.

          Cassel, J.

         I. INTRODUCTION

         A court sentenced Sydney L. Thieszen to life imprisonment for a murder he committed at age 14. Pursuant to Miller v. Alabama, [1] Thieszen obtained postconviction relief. The court resentenced Thieszen to 70 years' to life imprisonment. Because we find no abuse of discretion by the court, we affirm Thieszen's sentence.

         II. BACKGROUND

         1. Crime and Direct Appeal

         The facts and circumstances pertaining to Thieszen's crimes are set out in greater detail in our decision resolving his direct appeal.[2] In 1987, 14-year-old Thieszen shot and killed [300 Neb. 114] his 12-year-old sister, Sacha L. Thieszen. The State charged Thieszen with first degree murder and use of a firearm in the commission of a felony. Pursuant to a plea bargain, Thieszen pled guilty to second degree murder and the use of a firearm charge. In 1988, the district court imposed a sentence of life imprisonment for second degree murder and a consecutive sentence of 80 to 240 months' imprisonment for the firearm conviction.

         On appeal, Thieszen claimed that the district court abused its discretion in refusing to transfer his case to juvenile court and in imposing an excessive sentence on the firearm charge. We disagreed. We recognized that there was evidence Thieszen could possibly be successfully rehabilitated during the approximately 4 years that the juvenile court maintained jurisdiction over him, but that the record also supported the court's findings that the crime was violent and that Thieszen may require treatment beyond the age of majority.[3] We noted that the sentence for the firearm conviction was within the statutory limits, and we could not say that the court abused its discretion in imposing it.[4]

         2. First Postconviction and Retrial

         In 1994, Thieszen filed a motion for postconviction relief, alleging that the operative information was defective because it failed to allege he acted with malice. The district court sustained the motion and vacated Thieszen's convictions.

         The State then filed a second amended information which charged Thieszen with first degree murder and use of a firearm to commit a felony. A jury convicted Thieszen of the charges. The court again imposed sentences of life imprisonment for the murder conviction and a consecutive term of 80 to 240 months' imprisonment for the use of a firearm conviction.

         [300 Neb. 115] 3. Second Postconviction

         (a) Initial Proceedings

         In 2013, Thieszen filed a motion for postconviction relief pursuant to the decision in Miller.[5] The district court vacated Thieszen's life sentence, and the State appealed. We affirmed the judgment and remanded the cause for resentencing.[6]

         (b) Mitigation Hearing

         In March 2017, the district court received extensive evidence during a mitigation hearing.

         Thieszen was born into an abusive environment. His natural mother was an alcoholic. On one occasion while she was intoxicated, she tried to burn Thieszen's eyes out with a lighter. She stomped on him at one time. When Thieszen was 2 or 3 years old, she threw him in a swimming pool. She tried to run his hand through a meat grinder. Thieszen's natural mother also smashed his toys as punishment and locked him in closets. When Thieszen was approximately age 4, he was removed from his natural mother's custody due to abuse and neglect.

         After multiple foster care placements, Thieszen was placed with Edwin and Joyce Thieszen. Edwin and Joyce adopted Thieszen when he was 9 years old. At that time, Edwin and Joyce had three biological children and two other adopted children. Initially, Thieszen wanted to keep his distance from the family. But after approximately 1 year, he became very lovable and outgoing.

         Although Edwin and Joyce offered a stable and structured environment, it may not have been a nurturing one. A doctor who evaluated Thieszen in connection with the adoption process expressed some reservation that the family's strong religious beliefs may be too restrictive for a child with Thieszen's background. Edwin and Joyce believed in corporal punishment [300 Neb. 116] for rule violations. Edwin testified that he spanked the children when no other punishment worked and that he used his hand, a belt, a hose, or "whatever was handy."

         When Thieszen was 12 years old, there was "a sudden drastic change in his behavior." His report cards reflected much lower grades, he ceased performing his chores properly, and he began shooting holes in the family's buildings and machinery. In January 1986, Thieszen began seeing Sandra Kroeker, a counselor, due to concerns about his poor grades and dishonesty. Kroeker felt that there was a great correlation between Thieszen's adolescent behavior and the abusive relationship Thieszen had with his natural mother. Kroeker diagnosed Thieszen with a conduct disorder. She testified that ...


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