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State v. Nelson

Court of Appeals of Nebraska

October 29, 2019

State of Nebraska, appellee
v.
William J. Nelson, APPELLANT

         1. Sentences: Appeal and Error. Appellate courts do not disturb sentences imposed within the statutory limits absent an abuse of discretion by the trial court.

         2. Statutes: Judgments: Appeal and Error. Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

         3. 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.

         4. Sentences. When imposing a sentence, the sentencing court is to 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.

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

         6. Sentences. It is the minimum portion of an indeterminate sentence which measures its severity.

         7. __ . In the event of a discrepancy between an oral pronouncement of sentence and the written order of the sentence, the oral pronouncement controls.

         [27 Neb.App. 749] 8. Courts: Sentences: Appeal and Error. Where a portion of the court's oral pronouncement is invalid and another portion is valid, an appellate court has the authority to modify or revise the sentence by removing the invalid or erroneous portion.

          Appeal from the District Court for Madison County: James G. Kube, Judge.

          Chelsey R. Hartner, Chief Deputy Madison County Public Defender, and Barbara J. Masilko for appellant.

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

          Riedmann, Arterburn, and Welch, Judges.

          WELCH, JUDGE.

         I. INTRODUCTION

         William J. Nelson appeals his plea-based conviction for first degree sexual assault and the sentence imposed thereon. He contends that the sentence imposed was excessive and that the district court erred regarding the determination that his offense was an "aggravated offense" pursuant to Nebraska's Sex Offender Registration Act (SORA). Specifically, he claims that the aggravated offense determination must be made by a jury regarding community supervision and that the evidence did not support the district court's determination the offense constituted an aggravated offense relating to lifetime registration. We find that the sentence imposed was not excessive, and we affirm the court's written sentencing order which was different than the court's oral pronouncement of Nelson's sentence. Accordingly, we affirm.

         II. STATEMENT OF FACTS

         In June 2018, the victim told a law enforcement officer that in March 2016, several months before she turned 16 years of age, she had started an ongoing sexual relationship with Nelson, who was her half-sister's then-husband. The victim stated that she tried to end the relationship many times but [27 Neb.App. 750] that when she did so, Nelson always threatened to kill himself. Nelson admitted to law enforcement that he had a sexual relationship with the victim from the time she was 15 years of age until as recently as 2 months prior to the law enforcement interview.

         Pursuant to a plea agreement, Nelson pled guilty to first degree sexual assault. See Neb. Rev. Stat. § 28-319 (Reissue 2016). As part of the plea agreement, the State agreed not to bring further charges. The State provided a factual basis setting forth that between the dates of July 17, 2015, and July 16, 2016, Nelson engaged in sexual intercourse with the victim starting when she was 15 years of age and he was over 19 years of age.

         At the sentencing hearing, the court inquired into Nelson's life and into his relationship with the victim. Nelson told the court he was divorced and had a 6-year-old daughter who lived with her mother, he suffered from depression, and he thought about killing himself rather than living as a convicted sex offender. After repeated questioning on the subject, Nelson admitted that during the time of his sexual relationship with the victim, his suicidal ideation was largely to manipulate the victim to keep their relationship secret. At the hearing, the victim and her mother read prepared statements. The victim stated that she and Nelson confided in each other, she thought they loved each other, and they did not care about the consequences of their conduct. She stated that she soon realized she was "blinded by love and manipulation." The victim stated that Nelson cheated on her, lied to her, and secretly took pictures of her in "vulnerable situations" in order to blackmail her into not telling her family about their relationship. The county attorney later clarified that the victim was mostly nude in these pictures. The victim stated that Nelson "made [her] feel so worthless" that she considered suicide. The victim's mother said that Nelson made advances on the victim's friends and got their telephone numbers to make the victim jealous.

         [27 Neb.App. 751] The court stated that Nelson's decision to take responsibility was not remarkable, because the evidence against him was so clear. The court noted the lengths that Nelson had gone to in order to keep his relationship with the victim a secret and opined that Nelson seemed to have had a total disregard for the consequences to the victim. The court sentenced Nelson to 20 to 25 years' imprisonment with credit for 98 days served. The court further found by oral pronouncements that pursuant to SORA, the offense was an aggravated offense requiring lifetime community supervision and lifetime sex offender registration; however, the court's subsequent September 21, 2018, journal entry setting forth Nelson's sentence did not make reference to either lifetime community supervision or lifetime sex offender registration. Nelson timely appeals and is represented on appeal by the same counsel as represented him in the district court.

         III. ASSIGNMENTS OF ERROR

         Nelson's assignments of error, consolidated and restated, are that the district court erred (1) in imposing an excessive sentence and (2) in determining that his offense was an aggravated offense pursuant to SORA for purposes of the lifetime sex offender registration requirement and in making the aggravated offense determination for the purposes ...


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