Sentences: Appeal and Error. Appellate
courts do not disturb sentences imposed within the statutory
limits absent an abuse of discretion by the trial court.
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.
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.
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.
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.
Sentences. It is the minimum portion of an
indeterminate sentence which measures its severity.
__ . In the event of a discrepancy between an oral
pronouncement of sentence and the written order of the
sentence, the oral pronouncement controls.
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.
from the District Court for Madison County: James G. Kube,
Chelsey R. Hartner, Chief Deputy Madison County Public
Defender, and Barbara J. Masilko for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Riedmann, Arterburn, and Welch, Judges.
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
STATEMENT OF FACTS
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.
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.
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.
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.
ASSIGNMENTS OF ERROR
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 ...