State v. NelsonState v. Nelson
Jeffery D. Nelson appeals the imposition of an enhanced mandatory minimum hard 50 sentence under
Nelson was convicted of first-degree premeditated murder for beating his stepfather, Stanley Swartz, to dеath with a baseball bat while he slept in his bed. Nelson was also convicted of burglary and three counts of forgery for breaking intо Swartz’ home and stealing checks, which he later forged to withdraw $5,500 from Swartz’ account. Nelson’s crimes are detailed in his direct appeal, State v. Nelson,
On remand, the same judge that presided over Nelson’s trial presided over his re-sentencing. The State relied upon its previously submitted motion seeking the hard 50 sentence, arguing that aggravating circumstances justified this sentence. See
Nelson claimed in mitigation that the murder was committed while Nelson wаs under the influence of extreme mental or emotional disturbance based on years of Swartz’ physical and sexual abusе. Two witnesses testified on Nelson’s behalf regarding physical abuse—his biological aunt and grandmother. Both testified they witnessed Swartz grab Nelson by his arm and throw him into a chair across the living room when Nelson was a kindergartener. His aunt also testified that Nelson’s deсeased mother asked her to keep Swartz away from Nelson. But neither witness testified regarding tire alleged sexual abuse. For that claim, Nelson relied on a letter he wrote to a girlfriend while awaiting trial, in which he claimed repeated sexual abuse.
The district court found three aggravating factors were established by a preponderance of the evidencе: (1) Nelson committed the murder to avoid prosecution for the burglary and forgery; (2) Nelson killed Swartz to ensure he could not testily against him; and (3) die murder was committed in a heinous, atrocious, and cruel manner. In mitigation, the sentencing court found that Swartz physicаlly abused Nelson, citing the hearing testimony from his aunt and grandmother. It also found Nelson had not established sexual abuse by a preponderance of the evidence. The sentencing court re-imposed a hard 50 sentence, holding that any one of the aggravating factors outweighed die mitigating factor.
Nelson filed a timely appeal. This court has jurisdiction under
Analysis
Premeditated first-degree murder carries a life sentence with a mandatory minimum of 25 years before the defendant becomes eligible for parole unless the court finds the defendant should be subject to an enhanced mandatory minimum sentence. For crimes cоmmitted after July 1, 1999, diis requires a mandatory hard 50 term.
When reviewing a hard 50 sentence, appellate courts review the sentencing court’s weighing of aggravating and mitigating сircumstances under an abuse of discretion standard. State v. Appleby,
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasоnable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of lаw, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on anerror of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541 , 550,256 P.3d 801 (2011), cert. denied132 S. Ct. 1594 (2012).
Nelson does not claim the sentencing court’s decision was based upon an error of law or fact, he challenges whеther the action was so unreasonable no other person would have taken the sentencing court’s approach.
The district court held three aggravating circumstances existed by a preponderance of the evidence. First, it found that Nelson lulled Swartz to avoid prosecution for the burglary and stolen checks based on trial testimony that he was attempting to cover up those crimes and prevent prosecution. Second, it found that Nelson lulled Swartz to prevent him from testifying against him, noting Swartz had previously brought Nelson up for prosecution and Nelson was imprisoned on those charges. Third, it found that the murdеr was committed in an especially heinous, atrocious, and cruel manner because he repeatedly beat Swartz with a baseball bat while he lay in bed. The blows did not immediately kill Swartz because he regained consciousness and went into the living rоom, and there was evidence that he continued to suffer pain.
The district court also found the one mitigating factor—that thеre was physical abuse—based on the testimony by the two witnesses that they saw Swartz throw Nelson when he was a child. And it is this factor that Nеlson claims trumps the other three. Nelson claims no reasonable person would agree that the three aggravating factors, either individually or aggregated, outweigh the evidence of abuse. We disagree.
The district court’s conclusion is not unreasonable given the grisly facts of the crime and Nelson’s motive. It is well established that “ ‘[w]eighing aggravating and mitigating circumstances is nоt a numbers game. “One aggravating circumstance can be so compelling as to outweigh several mitigating circumstances” ’ or vice versa.” State v. Engelhardt,
Affirmed.