State v. Welty-Hackett, A-17-239

Welty pled no contest to attempted first-degree sexual assault of a child (Class IIA felony) based on sexual relations with a 12-year-old girl; he received a presentence investigation report and had served 95 days in jail.
At sentencing the district court imposed 4 years of intensive supervised probation, numerous conditions, a 95-day jail sentence credited for time served, and SORA registration.
The State appealed, arguing the probationary sentence was excessively lenient and based on improper, impermissible, and irrelevant considerations.
At sentencing the judge referenced facts (from Welty’s statements and Facebook messages) suggesting the minor initiated contact and appeared older, noted limited PSR information about the victim’s appearance, and described a broader problem of "promiscuous teenage girls."
The court said it sought to "bring some balance back into the system" and that this justified granting probation rather than prison; the State argued those remarks injected impermissible considerations and bias.
The appellate court found the judge had relied on impermissible and irrelevant factors (generalizations about teenage girls and a desire to "bring balance" to sentencing), vacated the sentence, and remanded for resentencing before a different judge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused discretion by imposing an excessively lenient sentence based on improper factors	Sentence was improperly lenient; judge relied on irrelevant considerations (victim appearance, generalizations about teenage girls, desire to "bring balance") when granting probation	Probation was justified by PSR facts (victim initiated contact, limited PSR detail, defendant's history) and statutory factors permitting withholding imprisonment	The court vacated the sentence: judge considered impermissible/irrelevant factors and relied on them sufficiently to require resentencing before a different judge

State v. Parminter, 283 Neb. 754, 811 N.W.2d 694 (2012) (standards for appellate review of sentencing and factors for probation)
State v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001) (consent or mistake as to victim’s age is not a defense to child sexual assault)
State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998) (sentencing remarks reflecting personal religious bias required vacatur and resentencing)
State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007) (probation review; inappropriate sentencing comments may be harmless if record shows permissible grounds)
State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016) (plain error standard)