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
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: 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
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.
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
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.
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.
from the District Court for York County: James C. Stecker,
Jeffery A. Pickens, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Vaughan, District Judge.
sentenced Sydney L. Thieszen to life imprisonment for a
murder he committed at age 14. Pursuant to Miller v.
Alabama,  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.
Crime and Direct Appeal
facts and circumstances pertaining to Thieszen's crimes
are set out in greater detail in our decision resolving his
direct appeal. 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.
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. 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
First Postconviction and Retrial
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.
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.
Neb. 115] 3. Second Postconviction
2013, Thieszen filed a motion for postconviction relief
pursuant to the decision in Miller. The district
court vacated Thieszen's life sentence, and the State
appealed. We affirmed the judgment and remanded the cause for
March 2017, the district court received extensive evidence
during a mitigation hearing.
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
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.
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."
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 ...