State of Nebraska, appellant.
Jason T. Gibson, appellee.
Sentences: Appeal and Error. When reviewing
a sentence within the statutory limits, whether for leniency
or excessiveness, an appellate court reviews for an abuse of
Judges: Words and Phrases. A judicial abuse
of discretion exists only when the reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying a just result in
matters submitted for disposition.
Appeal and Error. Plain error may be found
on appeal when an error unasserted or uncomplained of at
trial, but plainly evident from the record, prejudicially
affects a litigant's substantial right and, if
uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process.
Sentences: Judgments. If an oral
pronouncement of sentence is invalid but the written judgment
imposing sentence is valid, the written judgment is looked to
and considered controlling.
Sentences: Appeal and Error. Neb. Rev. Stat.
§ 29-2322 (Reissue 2016) sets forth the factors that an
appellate court is to consider when reviewing a sentence
alleged to be excessively lenient.
Sentences. When imposing a sentence, a
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 amount of
violence involved in the commission of the crime.
Sentences: Probation and Parole. Where no
mandatory minimum term of imprisonment is statutorily
required, a term of probation is a viable alternative,
unless, having regard to the nature and circumstances of the
crime and the history, character, and condition of the
defendant, [26 Neb.App. 560] the court finds imprisonment is
necessary for protection of the public because the defendant
is likely to reoffend, the defendant is in need of
correctional treatment most effectively provided through
commitment to a correctional facility, or the seriousness of
the crime would be depreciated by a lesser sentence.
Sentences. To issue a lesser sentence upon a
conviction because another person may be more culpable
detracts from the requirement that the sentencing court
consider the nature and circumstances of the present crime
and the characteristics of the offender before it.
from the District Court for Sarpy County: Stefanie A.
Martinez, Judge. Sentence vacated, and cause remanded with
Kleine, Deputy Sarpy County Attorney, for appellant.
L. Schense, of Law Office of Donald L. Schense, for appellee.
Pirtle, Riedmann, and Bishop, Judges.
T. Gibson was sentenced to 180 days' incarceration and 5
years' probation on his conviction for attempted first
degree sexual assault of a child, a Class II felony. The
State of Nebraska has appealed the sentence, claiming that
the district court for Sarpy County abused its discretion in
imposing an excessively lenient sentence. Because we agree,
we vacate the sentence, and remand the cause with directions.
was initially charged with first degree sexual assault of a
child, a Class IB felony which carries a mandatory minimum
sentence of 15 years in prison for the first offense. See
Neb. Rev. Stat. § 28-319.01 (Reissue 2016). In exchange
for Gibson's agreement to plead no contest, the State
amended the charge to attempted first degree sexual assault
of a child, a Class II felony.
Neb.App. 561] At the plea hearing, the State set forth the
factual basis as follows:
[B]etween December 1st of 2016, and January 31st of 2017,
DeArch Stubblefield was prostituting out an individual by the
name of EX., [born in June 2001]. E.L. stated that between
December 1st, 2016, and January 31st, 2017, . . .
Stubblefield and her were picked up by a male party later
identified as . . . Gibson. That male then drove them to his
house ... in Sarpy County, Nebraska.
[T]here all three parties involved engaged in intercourse,
which happened on the couch. During this meeting, money was
exchanged after the sexual intercourse. The intercourse would
include sexual penetration or penile penetration of . . .
Gibson of E.L.
E.L. was later, during an investigation, shown a photo lineup
and identified the Defendant, . . . Gibson. . . . Gibson was
later interviewed and he further admitted to having sexual
intercourse with E.L. on the couch at [this location].
upon the above factual basis and a finding that the plea was
made knowingly, intelligently, and voluntarily, the court
accepted the plea and found Gibson guilty of attempted first
degree sexual assault of a child. Gibson agreed to the plea
despite being incorrectly advised by the district court that
a Class II felony carried a maximum minimum sentence of 1
year's incarceration. A presentence investigation (PSI)
revealed that the present offense was Gibson's first
criminal activity for which he was charged. All testing and
assessments placed him in the low risk to reoffend category.
He had been a member of the U.S. Air Force for 16 years,
receiving commendable reviews and numerous honors. Upon
contact from the police, he immediately admitted his acts,
although he continually denied that he was aware of [26
Neb.App. 562] the victim's true age, claiming that both
she and Stubblefield admitted to misrepresenting her age.
to the PSI, Gibson became involved in this incident by
responding to a "Craigslist" posting that
advertised an opportunity to join two other people for a
sexual encounter. Gibson admitted that he made all
arrangements through Dearch Stubblefield, the individual who
posted the advertisement, and that he paid Stubblefield $40
after the sexual encounter. Gibson's description of the
encounter discloses that after arriving at Gibson's
house, Stubblefield directed E.L. to take off her clothes and
that E.L. did not engage in any discussion with Gibson during
the encounter. The PSI also includes a "Memorandum"
authored by Gibson and directed to the sentencing court. In
it, Gibson points out that he ...