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State v. Gibson

Court of Appeals of Nebraska

November 13, 2018

State of Nebraska, appellant.
v.
Jason T. Gibson, appellee.

         1. 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 discretion.

         2. 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.

         3. 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.

         4. 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.

         5. 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.

         6. 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.

         7. 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.

         8. 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.

          Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Sentence vacated, and cause remanded with directions.

          Phil Kleine, Deputy Sarpy County Attorney, for appellant.

          Donald L. Schense, of Law Office of Donald L. Schense, for appellee.

          Pirtle, Riedmann, and Bishop, Judges.

          RIEDMANN, JUDGE

         INTRODUCTION

         Jason 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.

         BACKGROUND

         Gibson 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.

         [26 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].

         Based 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) was ordered.

         The 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.

         According 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 ...


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