*1 to affirm with direction the cause remand Appeals court. the district judgment of with direction. remanded
Reversed appellant. Philipps, appellee, Nebraska, v. Carla 496 N.W.2d 12, 1993. No. Filed March S-91-1016. appellant.
Mark E. Ford for General, Stenberg, Attorney Don and J. Kirk Brown for appellee. C.J.,
Hastings, Boslaugh, White, Caporale, Shanahan, JJ. andLANPHiER, Per Curiam. plea bargain,
Pursuant to a the defendant-appellant, Philipps, pled nolo adjudged contendere to and guilty two attempted counts of theft property of a value less than $1,000, in violation of Neb. Rev. Stat. 28-201 and 28-511 §§ *2 (Reissue 1989), and one count of theft property valued at less $300, than in violation misdemeanors, of 28-511. As I § Class 28-201 and Neb. (Reissue § Rev. Stat. 28-518 1989), § each count carries a penalty up year’s maximum to 1 imprisonment $1,000 and a fine. Neb. Rev. Stat. 28-106 (Reissue 1989). The district Philipps court sentenced to a term year’s of 1 imprisonment count, on each sentences run concurrently. Philipps appealed, asserting that the sentences were excessive. The Appeals Nebraska Court of agreed and sentences, vacated the remanding the cause to the district court with the direction Philipps be sentenced to under such terms and conditions as the district court deemed appropriate. The plaintiff-appellee successfully petitioned review; this court for further we reverse the judgment of the Nebraska Appeals Court of and remand the cause to that court with the direction that it affirm the judgment of the district court.
Philipps employed by was a Lincoln washing car business for nearly years. Her tasks included bookkeeping, keeping the daily receipts, making deposits, handling money. and early In 1991, April she told manager the assistant register that the cash $350 caught short. This event the attention of the owner of business, who, 23, 1991, on or April began about closely examining daily receipts. very day, On that he discovered a shortage $150 began cash. He then going through back period books over years of 3 $350 and discovered a deficit of 8,1989, 11,1990. on both November and June The owner contacted police, the Lincoln who then talked Philipps. with Philipps taking money admitted April on opened purse $1,080, and her to reveal which she handed police. money over to the The included amounts taken on occasions other April than 23. taking also admitted money 8,1989, 11,1990. on November and June
Although originally $24,000 the owner estimated could he, business, defense prosecutor, his from
have been stolen $10,000 approximation as an counsel, Philipps arrived at and during pilfered her Philipps had total amount of the restitution, Philipps turned to make In an effort employment. funds, program employer profit-sharing her her former over to confiscated $7,960.14. returned was totaling Also arrest, Philipps paid an and Philipps at the time of from 16,1991. August $959.86 on additional record, money took prior no part from arising at least pressures financial because of repairs, appeared expenses and home family medical years remorseful, was, sentencing, 29 old at the time of pregnant. (Cum. Supp. 1992)provides:
Neb. Rev. Stat. 29-2308 may that now are or hereafter In all criminal cases Court, the Appeals Supreme pending in the Court of by the may reduce the sentence rendered appellate court opinion the against the accused when in its district court excessive, duty be the and it shall against the accused appellate court to render such sentence may No opinion in its be warranted the evidence. *3 aside, judgment judgment granted, new trial or shall be set grounds any in case on the rendered jury improper misdirection of the or the admission any rejection of evidence or for error as to matter of court, procedure appellate if after an pleading or cause, that no examination of the entire considers actually miscarriage justice substantial occurred. statute, Relying foregoing Appeals Court of on the notwithstanding court had not concluded that that the district did, sentencing Philipps abused its discretion in as it the Court statutory duty reduce Appeals nonetheless had the so, doing it In sentences because deemed them excessive. 233, Spiegel, 474 Appeals Court of cited State v. 239 Neb. (1991), may 873 which that this court reduce N.W.2d recites a excessive, Foutch, opinion sentence which in its and State v. 644, (1976), proclaims Neb. 244 N.W.2d which 196 291 a which 29-2308 authorizes this court to reduce appears excessive.
897
However,
Spiegel
the statements in Foutch and
must be read
in
longstanding
consistently applied
the context of the
rule
imposed
statutory
that a sentence
within
will
limits
not be
See,
disturbed
appeal
on
absent an
e.g.,
abuse of discretion.
Reynolds,
874,
p.
State v.
ante
(1993);
Indeed, the
abuse
discretion standard was found to be
intertwined with that of
early
excessivenessat least as
in
as 1954
Taylor State,
210,
159 Neb.
(1954),
N.W.2d (1972) (sentence statutory within ordinarily limits occurs; not disturbed unless abuse discretion when sentence evidence, excessive or not warranted contemplates 29-2308 appeal). correction on
Nor is the fact that on occasion this court has referred to imposed sentences in other illustrating cases as a means an discretion, see, e.g., 478, 476 abuse of Haynie, State v. 239 Neb. N.W.2d (1991), to be interpreted meaning nondeath appellate sentence an court is to de conduct a novo review of the record to determine whether a sentence is proportionate appropriate. and thus Reynolds, supra; State v. Hall, Riley, State v. supra; supra. State v. As noted in State v. Sianouthai, 225 Neb. 402 N.W.2d (1987), the issue in reviewing a sentence is not whether someone else a different sentence, case received a lesser but whether the defendant in the subject appropriate Moreover, case received an one. to the sentencing court appellate and not to an court is entrusted the power impose sentences for the commissions of crimes *4 against State; judgment sentencing court cannot be interfered with in the absence of an abuse of discretion. See Hall, supra. State v. rejecting argument the defendant’s 29-2308
In opinion to reduce a sentence which in its impowered this court excessive, Orner, 523, we, in Neb. 222 N.W.2d State v. 819(1974), wrote: argument
The thrust of the defendant’s
is to the effect that
original sentencing
an
this court should sit as
court and to
determine de novo what the sentence should be. This court
held,
noted,
consistently
has
as we have
that the standard
of review in this court is whether there
been an
abuse
by
of discretion
the lower court. This court construed the
29-2308,
1943,
meaning of section
R.R.S.
in the case of
State,
474, 67
762,
Bell v.
159Neb.
N.W.2d
when it said as
29-2308,
1943,
follows: “Section
R.R.S.
which authorizes
Supreme
Court
to reduce a sentence when in its
opinion
excessive,
the sentence is
was not
intended
Legislature as a directive to the court
to reduce the
asked,
every
sentence in
only
instance where it is
but
apparent
those cases where it is
that the trial court has
judicial
abused its
penalty
discretion and
a
which is
fixed
”
clearly excessive.
(Emphasis
original.)
See, also,
Id. at
222N.W.2dat 820.
Cano,
State v.
709,
Having regard for the nature and circumstances of the
899 crimes, history, and the character and condition of the defendant, imprisonment the Court finds that necessary protection public defendant for the the because a depreciate lesser sentence would the seriousness promote of the defendant’s disrespect crimes would for the law.
Notwithstanding Philipps’ pregnancy and lack of a criminal record, the facts are that she from placed stole one who his trust and, in her through plea bargain, escaped prosecution aas felon for her violation of that trust.
As the Appeals concluded, Nebraska Court of itself the sentences at do issue not constitute an abuse of discretion. concluded, Having analysis so of the Nebraska Court of Appeals should have ended and it should have affirmed the judgment of the district court.
Accordingly, as written in first paragraph opinion, this we judgment reverse the Appeals the Nebraska Court of remand the cause it with the direction that it affirm the judgment of the district court. Reversed and remanded with direction. J., participating. not
Fahrnbruch, J., dissenting. Shanahan, majority correctly
The appellate *6 January 1992. deliver her child record, graduate, and high is school Carla has no criminal maintained a GPA community college where she attended a has charged committing the offenses Before on a 4.0 scale. of 3.5 daughters her her, regularly, took attended church against Carla school, and school participated in church Sunday and to record. has a criminal None of her friends activities. Robert, husband, apprentice, is sent an electrician’s
Carla’s away months, every requiring that he job to a new location time,” “weeks sometimes periods for “extended from home time.” at a incurred for Robert expenses have been
Extensive medical by medical insurance. not covered Philipps’ son which are reasons, $7,000 nearly for various owe Carla and Robert Monthly house. expenses repairs and to their including dental while During pregnancy, $533. and payments are her house job help her sentencing, part-time to awaiting Carla obtained a family her was a family. obviously, financial stress on Quite misappropriate funds prodding Carla to substantial factor employer. from her acknowledged by both the State sentencing, and as
Before court, to her Carla made full restitution and hearing, lawyer at the sentence Through her employer. including electronic probation, sentence of Philipps asked for a if the court believed that such monitoring in her home necessary the circumstances. The monitoring was under Philipps was program available for Carla comprehensive stringent sentencing and but reasonable. The readily acknowledged: you “I am court confident that wouldn’t you disappoint probation. me on I am confident would Nevertheless, successfully complete probation.” the court year sentenced Carla to Center for Women at Nebraska sentencing judge “obligation York because the felt an to see that mores, society and the morals standards are protected, only way and society protected in that mean, regard is for me punish, somebody to sentence or I so message that a is sent out.” statutory grounds
The standard for contains weight “shall withholding which be accorded in favor of [a] imprisonment,” including following the six factors: (f) compensated The will compensate offender has or victim damage injury of his or crime for or sustained; victim
(g) history The delinquency offender has no prior activity law-abiding led a life for a period substantial time before the commission of the crime;
(h) The crime unlikely result of circumstances recur; to
(i) The character and attitudes of the offender indicate unlikely crime; that he or she is to commit another (j) likely affirmatively The respond offender treatment; probationary
(k) Imprisonment of the would offender entail hardship dependents. excessive his or her *7 (Reissue Neb. Rev. Stat. 29-2260(3) 1989). § Also, recently, Legislature, referring more the Nebraska to a program of supervision part intensive aof sentence of probation, expressed legislative and its intent Nebraska’s public sentencing: policy regarding Legislature
The finds and declares that intensive supervision programs probation are effective an to imprisonment. desirable alternative It is the Legisláture’s encourage to intent the establishment of intensive programs supervision for the selected Legislature probationers. It is further the intent of the that safety and protect to formulated programs such community where the public in the of the welfare throughout the State of operating and programs are Nebraska. 1992). The (Cum. Supp. Rev. Stat. 29-2262.02
Neb. by the conclusion statutory expression is bolstered foregoing by imprisonment punishment preferable to probation: because liberty the individual while
(1) maximizes court; authority (2) eases the vindicating the of the community; (3) into the reintegration of the offender places on imprisonment costs that minimizes the hidden offender, reduced in the form of both family separation; (4) is the most enforced income and supervision. form of correctional economic 1986). (2d at 18.75-76 ed. ABA for Criminal Justice Standards Court, purpose According Supreme the basic to the U.S. probation is offering young program individualized provide an opportunity to rehabilitate
unhardened offender an institutional confinement under the himself without continuing tutelage probation official and under the of a punishment for power impose of the court to institutional original offense in the event that he abuse this his opportunity. 113, 117, States, 264, 272, 320 U.S. 64 S. Ct.
Roberts v. United
See, also,
States, 287 U.S.
(1943).
Thus, objective is to individualize the judging just imposed, punishing the offender and not offense, or, 2,000 years ago: for the as Cicero observed some offense,” punishment fit but “The shall should be “[c]are punishment proportion taken should not be out of manner, punishment In that fit offense.” should both
903 offense the offender avoid disproportionality and to and a for the between offense sanction violation. necessary Supreme
As U.S. Court has instructed: “It is to case, careful, give individualize each that humane and comprehensive particular consideration to the situation of each States, 220, 53 offender....” Burns v. United 287 U.S. S. Ct. at Moreover, 155-56. punishment at “the should the offender fit merely York, not crime.” and Williams New 337 U.S. 247, 69 1079, 1083, 93 (1949). S. Ct. L. 1337 Ed. appeal,
On when Carla claimed that her sentence was excessive, especially family in growing view of her and the family’s needs, State responded: Philipps’ “The fact is that breeding wholly appellee habits are irrelevant.” Brief for at 6. ” habits, parenthood To refer to in “breeding likening terms of being livestock, human is type absolutely some beast or outrageous indefensible, although such unreasonableness supply insight does into the State’s view of the process. one, assuredly, including
Most no Philipps, Carla believes taking money from employer one’s “business usual” and, therefore, However, go punishment. should without severity imposed on appears Carla compared imposed rather curious when it is to sentences on instance, Jordan, some others. in For as reflected State v. initially Neb. (1992), charged N.W.2d 198 Jordan was felony in a two-count information for property thefts of valued $300 and, therefore, charged between with in A felony commission of a Class IV each count. IV Class felony punishable by years a term of as the maximum imprisonment on conviction and no minimum term of imprisonment. See Neb. Rev. 28-105(1) (Reissue 1989). Stat. § plea bargain, the result of As dismissed one count County, fact, against Jordan. The district for court Lancaster judge same Philipps, who sentenced Carla sentenced monitoring with Jordan residential electronic provisions probation; addition to other standard for Jordan theft; felony restitution for his Carla made made restitution for convictions. Jordan’s misdemeanor probation; factor for in Carla restitution was a restitution notwithstanding imprisonment, avoid case did not Philipps’ doubt whatsoever expressed no sentencing court that the might contained comply with whatever Philipps would *9 of Daniel is the case as curious order. Just probation in a intending to distribute charged with initially who was Muratella by felony punishable II a Class possession, his cocaine in guilty entered his years, but who later 1to 50 imprisonment for cocaine, a charge simple possession the reduced plea to by probation felony. Muratella was sentenced IV Class County. Muratella’s court for Lancaster district v. monitoring See State in his residence. electronic included got 567, 483 Muratella Muratella, (1992). 128 N.W.2d 240 Neb. conviction; jail Philipps got a felony drug Carla probation for a imply not theft. This does misdemeanor term for were incorrect in the Muratella sentencing courts in Jordan or Rather, Riley, ante in State in those cases. imposed sentences that, 23, we noted 893, (1993), 27 N.W.2d p. mandatory analysis is not of sentences although comparative a claim, comparative analysis examining an excessivesentence judgment that a sentence is may validate an initial be used “to to be excessive.” disproportionate to the crime as grossly so mandatory Thus, rejected comparative court has while this review in reference to an excessive analysis proportionality claim, when the boggles mind and then blushes sentence placed beside the Carla imposed on and Muratella. probation for Jordan sentences of case, completely court Philipps’ In Carla factors for important and habits as ignored past life Moreover, 6 appropriate sentence. determination of an 29-2260, favoring probation imprisonment, over factors nothing The record contains present Philipps’ in Carla case. are any notoriety. Philipps’ offenses received to indicate that Carla Carla “message” imprisonment sent Regarding a Appeals made a common Philipps, the Nebraska Court sense observation: who works in a carwash seems
Imprisoning a woman positions unlikely any effect on those in to have deterrent trust, might who power, and influence of substantial help to substantial funds entrusted tempted themselves to their care. any way This is not to excuse in Philipps’ behavior seriousness of the crime that she has is, however, say committed. It that the deterrent effect might to others which occur from her imprisonment quite minimal.
State v. Philipps, vein, 1 NCA (1992). In the same there is
doubt whether register most sentences ever on' the community. Only consciousness of the smattering thousands of imposed day sentences throughout each nation reported are in the mass media. Even the few reported sensational cases that are present seldom judge’s sifting factors, competing subtle particularly those found in reports confidential and studies. Campbell,
Arthur W. Sentencing Law of (2d 2:3 at 27 ed. 1991). Since not, the mores and County morals of Lancaster did report, at last disintegrate as the result of the sentences of probation granted Muratella, to Jordan extremely it is unlikely allowing family to remain with her *10 through probation county’s would unravel the moral fabric.
Moreover, probation offenders sentenced to can be supervised at a fraction of the cost for their incarceration and support can continue Nevertheless, their own families. year’s imprisonment. sentenced to 1 Currently, the spends $68.89 State per day prisoner to maintain a in the Nebraska Center for Consequently, Women. it will cost the $12,500 State between keep bars, behind depending on whether she serves the full term of year her 1 sentence or is released serving after the minimum time of incarceration. 83-1,107 See Neb. Rev. Stat. (Cum. Supp. 1992). every
There is reasonable indication with a prudent program of will rehabilitation eliminate Carla Philipps’ criminal inclination way because “the best discourage activity skills, motivation, is to offer employment opportunities that will reorient offenders toward socially productive Campbell, behavior.” supra 2:4. conclusion,
In there was an abuse of discretion imposing an excessive Philipps. sentence on Carla The Nebraska Court of to the Philipps’ case remanding Carla
Appeals was correct quality of probation. “The for a sentence district court case; ruptured. Philipps’ it’s in Carla mercy strain’d” is not J., joins in this dissent. Lanphier, age. years H., re Interest of J. a child under In appellant. D.H., Nebraska, appellee, N.W.2d 346 12, 1993. Filed March No. S-92-095. notes standard review in examining an excessive sentence claim is whether the sentencing court abused imposed. its discretion in the sentence However, pointed by petition out the State in its for further review, question imposed remains whether the sentence on Philipps Carla must be affirmed “deference” district court which was “in the position best to observe and evaluate history and current attitude” a convicted defendant. If an appellate yields court sentencing judgment to a court’s for the expressed by State, reason meaningful appellate then a imposed illusory review of a aspect but an of due process. reason, Philipps’ For that appeal lest Carla become nothing spree, more than semantic this court should have determined whether the court abused its discretion by imposed Philipps. an excessivesentence on years age when she committed the Carla’s when was sentenced. years old she offenses, and was During 1985. in November in divorce marriage ended first whom is now daughters, one of had two marriage, Carla decree, Carla’s the divorce old, is 7. Under while the other years as child per $200 month pay was ordered to husband former but, he was by daughters, their support for support. delinquent in child Philipps’ son Philipps in 1988. Robert Carla married Robert, Carla, and Carla’s with marriage lives also another addition to been still another that there has daughters. I assume Carla was states that family, the record for expected to September 1991 and when sentenced pregnant