State v. Baxter, 295 Neb. 496

Background

Shannon L. Baxter pled no contest to (1) possession of a controlled substance (Class IV felony) and (2) unlawful acts relating to drugs (Class III misdemeanor); sentencing set for Feb 4, 2016.
Baxter moved to continue sentencing to obtain a substance‑abuse evaluation and allow completion of the presentence investigation; the district court denied the continuance.
Under 2015 Neb. Laws L.B. 605, § 29‑2204.02 required probation for Class IV felonies unless specified exceptions applied, including where there are "substantial and compelling reasons" that community supervision would not be effective and safe.
The presentence report reflected high risk for drug relapse, prior probation revocations, missed appointments, and a probation officer opinion that Baxter was unmotivated for supervision.
The court found Baxter not suitable for probation, stated reasons in the sentencing hearing and order, and imposed concurrent maximum imprisonment terms (2 years for the felony with 12 months postrelease supervision; 3 months for the misdemeanor).
Baxter appealed, arguing the denial of the continuance and that the court failed to follow § 29‑2204.02 when denying probation.

Issues

Issue	Baxter's Argument	State's Argument	Held
Whether denial of continuance for sentencing was an abuse of discretion	Denial prejudiced her by preventing completion of a drug/alcohol evaluation and depriving court of relevant information	Probation report and hearings contained sufficient substance‑abuse information; delay resulted from Baxter's missed appointments	No abuse: denial was within court discretion; Baxter failed to show prejudice and delay was due to her own actions
Whether court complied with § 29‑2204.02(3) in stating reasons on the record when denying probation	Sentencing order merely listed reasons without explaining reasoning as statute requires	Court’s oral pronouncement plus written order together constitute the record and satisfy the statute	Held that the combination of oral statements at sentencing and the written order met the statute’s “state its reasoning on the record” requirement
Whether the court identified valid "substantial and compelling reasons" under § 29‑2204.02(2)(c) to withhold probation	Baxter argued reasons were insufficient or improperly relied on prior probation failures	Court relied on presentence report: history of probation revocations, high relapse/risk scores, lack of motivation, and factors from § 29‑2260	Held reasons were valid and derived from § 29‑2260; prior probation failures may be considered along with other factors
Whether the court abused its discretion in concluding probation would not be effective/safe	Baxter contended record did not support that probation would be ineffective	State pointed to presentence investigation showing high drug risk, prior revocations, unwillingness to engage in supervision	No abuse: record (PSI and hearing) supports that probation would not effectively and safely supervise Baxter

Key Cases Cited

State v. Ash, 286 Neb. 681, 838 N.W.2d 273 (2013) (standard for continuance and abuse of discretion)
State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011) (no abuse of discretion in denying continuance absent showing of prejudice)
State v. Eichelberger, 227 Neb. 545, 418 N.W.2d 580 (1988) (denial of continuance improper only when delay is not within defendant’s control)
State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016) (general sentencing review standard: within statutory limits, appellate review for abuse of discretion)
State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015) (decision to grant probation is within trial court’s discretion)