In this case, the district court affirmed the ruling of the director of the Department of Motor Vehicles (the Department) that petitioner, Steven R. Yenney's, driving privileges should be revoked for 1 year under the administrative license revocation (ALR) statutes. The Nebraska Court of Appeals found, on appeal, that the Department did not make a prima facie case for license revocation, and therefore reversed, and remanded with directions to reinstate petitioner's driver's license.
Yenney V. Nebraska Dept. Of Motor Vehicles, 15 Neb. App. 446 (2007)
Court of Appeals Headnotes
Administrative Law:
Motor Vehicles:
Judgments: Appeal and Error. Decisions of the director of the Department of Motor Vehicles, pursuant to Nebraska's administrative license revocation statutes, are appealed under the Administrative Procedure Act.
Licenses and Permits: Revocation:
Evidence: Jurisdiction. The sworn report of the arresting officer shall be received into the record by the hearing officer as the jurisdictional document of a license revocation hearing, and upon receipt of the sworn report, the order of revocation by the director of the Department of Motor Vehicles has prima facie validity.
Police Officers and Sheriffs: Drunk Driving:
Blood, Breath, and Urine Tests. Under Neb. Rev. Stat. § 60-498.01(2) (Reissue 2004), the required recitations in the sworn report in an administrative license revocation proceeding are that (1) the person was arrested as described in Neb. Rev. Stat. § 60-6,197(2) (Reissue 2004)--reasonable grounds to believe such person was driving under the influence--and the reasons for such arrest, (2) the person was requested to submit to the required test, and (3) the person refused to submit to the required test.
Jurisdiction. Including a statement in the sworn report in an administrative license revocation proceeding that the individual was arrested pursuant to Neb. Rev. Stat. § 60-6,197 (Reissue 2004) does not provide a factual basis for the arrest, because such is a mere legal conclusion.
Final Orders: Appeal and Error. A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.
Judgments: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
Evidence. A sworn report which does not include information required by statute cannot be supplemented by evidence offered at a subsequent administrative license revocation hearing.
Date Filed and Case No.: March 20, 2007. No. A-05-695.
Court Appealed From: Appeal from the District Court for Douglas County: Richard J. Spethman, Judge.
Attorneys for the Appeal: Adam J. Sipple for Steven R. Yenney , appellant. Jon Bruning, Laura L. Neesen, and Melissa R. Vincent for Nebraska Department of Motor Vehicles , appellee.
Judges: Inbody, Chief Judge, and Irwin and Sievers, Judges.
Authored By: Severs, Judge.
Summary: Shortly after midnight on 12/01/04, Omaha Police Officers found Yenney asleep behind the wheel of a vehicle in a gas station's parking lot. Upon having Yenney exit the vehicle the "strong" odor of alcohol was detected and noticed officers noted that Yenney had trouble standing, was slow to respond to commands and instructions, appeared to have urinated on himself, and exhibited "all the signs of intoxication." Some field sobriety tests were performed, Yenney refused to submit to a preliminary breath test and he was placed under arrest for suspicion of driving under the influence of alcohol (DUI). Yenney was transported to central police headquarters, where he refused to submit to a chemical test of his breath. One officer (Bakker) completed a "Notice/Sworn Report/Temporary License" (sworn report) form, which was also signed by another officer (Carlson) and it was filed with the Department.
On December 22, an ALR hearing, requested by Yenney, was held before a hearing officer for the Department. Neither party requested the rules of evidence be applied and that the hearing proceeded informally. At the beginning of the hearing, Yenney moved to dismiss for lack of jurisdiction because the reasons provided for arrest in the sworn report were deficient. Yenney argued, "They don't support an arrest for a DUI because they provide no indication that [Yenney] ever operated or was in a position to operate a motor vehicle." The motion was overruled, and the hearing proceeded. Officer Carlson testified that while en route to central police headquarters, Yenney spontaneously told him that Yenney had been driving the vehicle and had stopped at the gas station to get a "pop." The sworn report signed by Officers Carlson and Bakker was received into evidence. Following the hearing, the hearing officer recommended that the director of the Department find (1) that the officer had probable cause to believe Yenney was operating or in the actual physical control of a motor vehicle in violation of § 60-6,196, (2) that Yenney was operating or in the actual physical control of a motor vehicle while having an alcohol concentration in violation of § 60-6,196(1), and (3) that Yenney refused a peace officer's lawful direction to submit to a chemical test. The Department entered an order revoking Yenney's driver's license and/or operating privileges for 1 year.
Yenney timely filed a "Petition for Review of Administrative License Revocation" in the district court for Douglas County alleging that relief should be granted because the ALR order was arbitrary, contrary to law, and contrary to the Department's regulations governing the proceeding. A hearing on Yenney's petition for review was held following which the district affirmed the revocation of Yenney's operating privileges. Yenney appealed to the Nebraska Court of Appeals.
Did the district court err in finding that the Department properly overruled Yenney's motion to dismiss the administrative proceeding for lack of jurisdiction and in finding that the sworn report constituted prima facie evidence of the validity of the order of revocation by the director of the Department? Here, the officers' sworn report stated that Yenney was directed to submit to a chemical test and that he refused such test. The sworn report form also stated:
The undersigned officer(s) hereby swear(s) that the above-named individual was arrested pursuant to ... § 60-6,197, and the reasons for the arrest are: passed out in front of the gas Station, near front doors. Signs of alcohol intoxication." (The underscored portion indicates the officers' comments handwritten on the blank lines provided on the form.)
The Court found that while the handwritten reasons for the arrest do not recite that Yenney was driving or in a vehicle or even near one, the State sought to "bootstrap" such facts into the sworn report by the form's mere preprinted recitation of the fact he was arrested pursuant to the DUI statute. "The reasons recited for the arrest merely state that he was passed out near the front doors of the gas station, which could mean that Yenney was passed out on the sidewalk or driveway rather than in a motor vehicle, and the stated reasons include no facts showing how he got there or allowing an inference that he drove there in a drunken condition" ruled the Court.
The Court held that including a statement in the sworn report that the individual was arrested pursuant to § 60-6,197 does not provide a factual basis for the arrest, because such is a mere legal conclusion. However, the reasons for the arrest were in the record by way of Officer Carlson's testimony at the ALR hearing and his testimony of the spontaneous conversation he had en route to central police headquarters with Yenney (that Yenney had been driving the vehicle and had stopped at the gas station to get a "pop") However, a sworn report which does not include information required by statute cannot be supplemented by evidence offered at a subsequent hearing. Thus, the Department did not make a prima facie case for license revocation. Because the Department did not meet its burden of proof, Yenney's driver's license should not have been revoked.
Conclusion: For the reasons stated above, the Court found that the Department did not make a prima facie case for license revocation and that Yenney's driver's license should not have been revoked under the ALR statutes. REVERSED AND REMANDED WITH DIRECTIONS.
In this case, the district court affirmed the ruling of the director of the Department of Motor Vehicles (the Department) that petitioner, Steven R. Yenney's, driving privileges should be revoked for 1 year under the administrative license revocation (ALR) statutes. The Nebraska Court of Appeals found, on appeal, that the Department did not make a prima facie case for license revocation, and therefore reversed, and remanded with directions to reinstate petitioner's driver's license.
Yenney V. Nebraska Dept. Of Motor Vehicles, 15 Neb. App. 446 (2007)
Court of Appeals Headnotes
Administrative Law:
Motor Vehicles:
Judgments: Appeal and Error. Decisions of the director of the Department of Motor Vehicles, pursuant to Nebraska's administrative license revocation statutes, are appealed under the Administrative Procedure Act.
Licenses and Permits: Revocation:
Evidence: Jurisdiction. The sworn report of the arresting officer shall be received into the record by the hearing officer as the jurisdictional document of a license revocation hearing, and upon receipt of the sworn report, the order of revocation by the director of the Department of Motor Vehicles has prima facie validity.
Police Officers and Sheriffs: Drunk Driving:
Blood, Breath, and Urine Tests. Under Neb. Rev. Stat. § 60-498.01(2) (Reissue 2004), the required recitations in the sworn report in an administrative license revocation proceeding are that (1) the person was arrested as described in Neb. Rev. Stat. § 60-6,197(2) (Reissue 2004)--reasonable grounds to believe such person was driving under the influence--and the reasons for such arrest, (2) the person was requested to submit to the required test, and (3) the person refused to submit to the required test.
Jurisdiction. Including a statement in the sworn report in an administrative license revocation proceeding that the individual was arrested pursuant to Neb. Rev. Stat. § 60-6,197 (Reissue 2004) does not provide a factual basis for the arrest, because such is a mere legal conclusion.
Final Orders: Appeal and Error. A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.
Judgments: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
Evidence. A sworn report which does not include information required by statute cannot be supplemented by evidence offered at a subsequent administrative license revocation hearing.
Date Filed and Case No.: March 20, 2007. No. A-05-695.
Court Appealed From: Appeal from the District Court for Douglas County: Richard J. Spethman, Judge.
Attorneys for the Appeal: Adam J. Sipple for Steven R. Yenney , appellant. Jon Bruning, Laura L. Neesen, and Melissa R. Vincent for Nebraska Department of Motor Vehicles , appellee.
Judges: Inbody, Chief Judge, and Irwin and Sievers, Judges.
Authored By: Severs, Judge.
Summary: Shortly after midnight on 12/01/04, Omaha Police Officers found Yenney asleep behind the wheel of a vehicle in a gas station's parking lot. Upon having Yenney exit the vehicle the "strong" odor of alcohol was detected and noticed officers noted that Yenney had trouble standing, was slow to respond to commands and instructions, appeared to have urinated on himself, and exhibited "all the signs of intoxication." Some field sobriety tests were performed, Yenney refused to submit to a preliminary breath test and he was placed under arrest for suspicion of driving under the influence of alcohol (DUI). Yenney was transported to central police headquarters, where he refused to submit to a chemical test of his breath. One officer (Bakker) completed a "Notice/Sworn Report/Temporary License" (sworn report) form, which was also signed by another officer (Carlson) and it was filed with the Department.
On December 22, an ALR hearing, requested by Yenney, was held before a hearing officer for the Department. Neither party requested the rules of evidence be applied and that the hearing proceeded informally. At the beginning of the hearing, Yenney moved to dismiss for lack of jurisdiction because the reasons provided for arrest in the sworn report were deficient. Yenney argued, "They don't support an arrest for a DUI because they provide no indication that [Yenney] ever operated or was in a position to operate a motor vehicle." The motion was overruled, and the hearing proceeded. Officer Carlson testified that while en route to central police headquarters, Yenney spontaneously told him that Yenney had been driving the vehicle and had stopped at the gas station to get a "pop." The sworn report signed by Officers Carlson and Bakker was received into evidence. Following the hearing, the hearing officer recommended that the director of the Department find (1) that the officer had probable cause to believe Yenney was operating or in the actual physical control of a motor vehicle in violation of § 60-6,196, (2) that Yenney was operating or in the actual physical control of a motor vehicle while having an alcohol concentration in violation of § 60-6,196(1), and (3) that Yenney refused a peace officer's lawful direction to submit to a chemical test. The Department entered an order revoking Yenney's driver's license and/or operating privileges for 1 year.
Yenney timely filed a "Petition for Review of Administrative License Revocation" in the district court for Douglas County alleging that relief should be granted because the ALR order was arbitrary, contrary to law, and contrary to the Department's regulations governing the proceeding. A hearing on Yenney's petition for review was held following which the district affirmed the revocation of Yenney's operating privileges. Yenney appealed to the Nebraska Court of Appeals.
Did the district court err in finding that the Department properly overruled Yenney's motion to dismiss the administrative proceeding for lack of jurisdiction and in finding that the sworn report constituted prima facie evidence of the validity of the order of revocation by the director of the Department? Here, the officers' sworn report stated that Yenney was directed to submit to a chemical test and that he refused such test. The sworn report form also stated:
The undersigned officer(s) hereby swear(s) that the above-named individual was arrested pursuant to ... § 60-6,197, and the reasons for the arrest are: passed out in front of the gas Station, near front doors. Signs of alcohol intoxication." (The underscored portion indicates the officers' comments handwritten on the blank lines provided on the form.)
The Court found that while the handwritten reasons for the arrest do not recite that Yenney was driving or in a vehicle or even near one, the State sought to "bootstrap" such facts into the sworn report by the form's mere preprinted recitation of the fact he was arrested pursuant to the DUI statute. "The reasons recited for the arrest merely state that he was passed out near the front doors of the gas station, which could mean that Yenney was passed out on the sidewalk or driveway rather than in a motor vehicle, and the stated reasons include no facts showing how he got there or allowing an inference that he drove there in a drunken condition" ruled the Court.
The Court held that including a statement in the sworn report that the individual was arrested pursuant to § 60-6,197 does not provide a factual basis for the arrest, because such is a mere legal conclusion. However, the reasons for the arrest were in the record by way of Officer Carlson's testimony at the ALR hearing and his testimony of the spontaneous conversation he had en route to central police headquarters with Yenney (that Yenney had been driving the vehicle and had stopped at the gas station to get a "pop") However, a sworn report which does not include information required by statute cannot be supplemented by evidence offered at a subsequent hearing. Thus, the Department did not make a prima facie case for license revocation. Because the Department did not meet its burden of proof, Yenney's driver's license should not have been revoked.
Conclusion: For the reasons stated above, the Court found that the Department did not make a prima facie case for license revocation and that Yenney's driver's license should not have been revoked under the ALR statutes. REVERSED AND REMANDED WITH DIRECTIONS.
Anselm McCrimon appealed the sentence imposed following his plea of guilty to aiding and abetting a fraudulent insurance act asserting that the district court abused its discretion in imposing a probation condition requiring minimum child support payments towards a child support arrearage. "Failure to pay any monthly payment as required shall constitute a violation of probation." Because this term of the probation order was deemed reasonable by the Nebraska Court of Appeals and is statutorily authorized, the Court found no abuse of discretion by the trial court.
State v. Mccrimon,15 Neb. App. 452 (2007)
Court of Appeals Headnotes
Sentences:
Probation and Parole. When a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute.
Revocation. Before revoking probation for failure to make required payments, the sentencing court must find the probationer failed to make sufficient bona fide efforts to make the required payments. If the failure is willful, probation can be revoked and a jail sentence imposed within the sentencing range allowed by law for the original offense. If the court finds the probationer made sufficient efforts to satisfy the probation conditions, the court can order imprisonment only if it finds alternative punishments are not adequate to satisfy the State's interests in punishment and deterrence.
Probation and Parole:
Child Support. Requiring a probationer to pay child support is statutorily authorized under Neb. Rev. Stat. § 29-2262(2)(c) (Cum. Supp. 2004).
Revocation. Once probation is imposed, the defendant's ability to pay must be considered before a court can revoke the probation and impose a jail term for violating a probation condition requiring payments.
Date Filed and Case No.: March 20, 2007. No. A-06-492.
Court Appealed From: Appeal from the District Court for Sarpy County: David K. Arterburn, Judge.
Attorneys for the Appeal: Ann C. Addison-Wageman for Anselm Mccrimon , appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Irwin, Sievers, and Carlson, Judges.
Authored By: Irwin, Judge.
Summary: McCrimon and his girlfriend filed a fraudulent insurance claim and that as a result, the insurance company involved suffered a loss of $6,296.75. In exchange for McCrimon's plea of guilty, the State agreed to reduce the initial charge against him and charged him with aiding and abetting insurance fraud, a Class I misdemeanor. At the sentencing hearing, the court stated that it had reviewed the presentence investigation (PSI) report and that because McCrimon had a prior criminal history, he would be sentenced to intensive supervision probation. The intensive supervision probation order contained the provision, "Effective June 1, 2006, and on the first day of each month thereafter, [McCrimon] shall make minimum child support payments of $200.00 per month toward child support arrearage. Failure to pay any monthly payment as required shall constitute a violation of probation." McCrimon appeal to the Nebraska Court of Appeals.
Was the trial court's imposed probation term requiring him to pay $200 toward his child support arrearages excessive?. The Court found that because the imposed probation term is reasonable and authorized by statute, the trial court did not abuse its discretion in ordering McCrimon to make such payments. Neb. Rev. Stat. § 29-2262 (Cum. Supp. 2004) provides, in relevant part: (1) When a court sentences an offender to probation, it shall attach such reasonable conditions as it deems necessary or likely to insure that the offender will lead a law-abiding life. . . . (2) The court may, as a condition of a sentence of probation, require the offender: (c) To meet his or her family responsibilities. Beyond that statute the Court write that courts in other jurisdictions have held that child support payments are a proper condition of probation for an adult criminal defendant where the criminal conviction is unrelated to the condition of support.
Is the amount McCrimon is required to pay for child support is reasonable? Nebraska Revised Statutes § 29-2262(1) requires that all probation terms be reasonable. McCrimon argued that the $200-per-month requirement is not reasonable in that he was unable to pay such amount at the time of sentencing. Here, the PSI report indicated that although McCrimon is indebted to the State of Illinois for $10,000 regarding child support arrearages and is obligated to pay $500 per month toward those arrearages, he is not currently making payments. The PSI report indicated that McCrimon was "quite evasive" regarding his present employment. He indicated that he is self-employed and makes approximately $500 per month fixing and selling items such as snowblowers, lawnmowers, and computer parts. Although the impact of the probation order here may be harsh, "it is not unreasonable to expect McCrimon to pay his preexisting child support obligation when he currently has an income and some assets."
Did the district court err in imposing the probation term that "[fjailure to pay any monthly payment as required shall constitute a violation of probation"? The Court noted that once probation is imposed, the defendant's ability to pay must be considered before a court can revoke the probation and impose a jail term for violating a probation condition requiring payments. Should McCrimon be unable to pay $200 per month in child support, the trial court cannot revoke his probation and impose a prison term until it finds that his failure to pay is willful or that alternative punishments are not adequate to satisfy the State's interests in punishment and deterrence. Because the imposed probation term is reasonable and statutorily authorized, the Court found that the trial court did not abuse its discretion.
Conclusion: The Court concluded that the district court did not abuse its discretion in imposing this probation term that requires McCrimon to pay $200 per month in child support and that provides that failure to pay constitutes a violation of probation. AFFIRMED.
Driving Under the Influence, Enhancement, Convictions from Other States
Jeffry S. Scheffert appealed from the findings and sentence imposed upon him by the district court following Scheffert's conviction on one count of driving under the influence. The judgment of the district court was affirmed here by the Nebraska Court of Appeals.
State v. Scheffert (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Appeal and Error:
Issues of Law: When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).
Sentencing:
Appeal and Error: A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Losinger, 268 Neb. 660, 686 N.W.2d 582 (2004). An abuse of discretion in imposing a sentence occurs when a sentencing court's reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result. Id.
Considerations: In considering a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006). Factors a judge should consider in imposing a sentence include the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. Id.
Separate Crimes: It is generally within the trial court's discretion to direct that sentences imposed for separate crimes be served concurrently or consecutively. See State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
Date Filed and Case No.: March 20, 2007. No. A-06-831 & No. A-06-831.
Court Appealed From: District Court for Lancaster County: Steven D. Burns, Judge.
Attorneys for the Appeal: Dennis R. Keefe and Shawn Elliott for Jeffry S. Scheffert appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Inbody, Chief Judge, and Sievers and Moore, Judges.
Authored By: Inbody, Chief Judge.
Summary: On 01/03/06, Scheffert was charged with one count of driving under the influence. In addition the information alleged that Scheffert has been three times previously convicted of a DUI in Nebraska or another state and by such convictions this was a DUI fourth. Pursuant to a plea agreement, Scheffert pled guilty to the charge included in the information in exchange for the State's promise not to file any additional charges arising out of the incident that brought about the charge here. The district court accepted Scheffert's plea and found him guilty beyond a reasonable doubt of the charge contained in the information. The court then proceeded to an enhancement hearing. The State offered four exhibits: Exhibits 2 and 3 dealt with previous driving under the influence convictions in Lancaster County, and exhibits 4 and 5 dealt with previous driving under the influence convictions in South Dakota. Scheffert did not object to exhibits 2 and 3; however, he did object to exhibits 4 and 5, stating that it was his "position that South Dakota law and Nebraska law were not sufficiently similar to warrant these being used as prior convictions for enhancement purposes." The court found that it was a fourth subsequent offense for driving while under the influence of alcoholic liquor and a Class IV felony. The district court sentenced Scheffert to 15 to 48 months' imprisonment and Scheffert appealed to the Nebraska Court of Appeals.
Did the district court err when it enhanced his conviction for driving under the influence to a fourth offense? Scheffert claimed that the court erred when it relied upon the two South Dakota convictions at the enhancement hearing, because "the State . . . failed to establish that the laws of Nebraska and South Dakota were sufficiently comparable." The Court noted that Scheffert did not allege that exhibits 4 and 5, copies of his previous South Dakota convictions, were not properly authenticated. Therefore, the authenticated copies are prima facie evidence of such prior convictions. Based upon a review of exhibits 4 and 5, sufficient evidence was presented that the law which Scheffert was charged under and pled guilty to was similar to the applicable law in Nebraska at the time of his South Dakota convictions. "Those exhibits thus served as prima facie evidence of the convictions for the purpose of sentence enhancement" said the Court. "Therefore, the trial court did not abuse its discretion in finding that the prior out-of-state driving under the influence convictions were valid and could be used for enhancement purposes. This assignment of error is without merit."
Did the district court abuse its discretion when it imposed the sentence upon him? Scheffert did not allege that his sentence was not within the statutory limits for the crime he committed. Rather, Scheffert asserted that his sentence was excessive because the court ordered that this sentence run consecutively to another sentence imposed by the court for a separate conviction and because "a lesser sentence was warranted." The Court said that there is nothing in the record to suggest that the court abused its discretion when it ordered that the two sentences, imposed for two separate convictions arising out of two separate incidents, be served consecutively. "This allegation lacked merit."
Was a lesser sentence warranted? Essentially, Scheffert claimed that he should have received a lesser sentence because his criminal record consists mainly of offenses commonly associated with drug and/or alcohol use and abuse, he did not have a violent history, he has admitted his struggles with alcoholism and has undergone treatment, he apologized for his actions, and he "did not cause anyone serious harm in this case." The Court found it clear from the record that the sentence imposed upon Scheffert by the district court was not excessive. "Scheffert was convicted of a Class IV felony, and he could have been sentenced to up to 5 years' imprisonment. The sentence of 15 to 48 months' imprisonment was clearly within the statutory limits for the crime Scheffert committed, and in fact, the minimum portion of the sentence is on the low end of those limits" said the Court.
Conclusion: The Court found that the district court did not err when it enhanced Scheffert's offense to a fourth offense, nor did the court abuse its discretion when it imposed its sentence upon Scheffert. AFFIRMED.
Jeffry S. Scheffert appealed from the findings and sentence imposed upon him by the district court following Scheffert's conviction on one count of driving under the influence. The judgment of the district court was affirmed here by the Nebraska Court of Appeals.
State v. Scheffert (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Appeal and Error:
Issues of Law: When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).
Sentencing:
Appeal and Error: A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Losinger, 268 Neb. 660, 686 N.W.2d 582 (2004). An abuse of discretion in imposing a sentence occurs when a sentencing court's reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result. Id.
Considerations: In considering a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006). Factors a judge should consider in imposing a sentence include the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. Id.
Separate Crimes: It is generally within the trial court's discretion to direct that sentences imposed for separate crimes be served concurrently or consecutively. See State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
Date Filed and Case No.: March 20, 2007. No. A-06-831 & No. A-06-831.
Court Appealed From: District Court for Lancaster County: Steven D. Burns, Judge.
Attorneys for the Appeal: Dennis R. Keefe and Shawn Elliott for Jeffry S. Scheffert appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Inbody, Chief Judge, and Sievers and Moore, Judges.
Authored By: Inbody, Chief Judge.
Summary: On 01/03/06, Scheffert was charged with one count of driving under the influence. In addition the information alleged that Scheffert has been three times previously convicted of a DUI in Nebraska or another state and by such convictions this was a DUI fourth. Pursuant to a plea agreement, Scheffert pled guilty to the charge included in the information in exchange for the State's promise not to file any additional charges arising out of the incident that brought about the charge here. The district court accepted Scheffert's plea and found him guilty beyond a reasonable doubt of the charge contained in the information. The court then proceeded to an enhancement hearing. The State offered four exhibits: Exhibits 2 and 3 dealt with previous driving under the influence convictions in Lancaster County, and exhibits 4 and 5 dealt with previous driving under the influence convictions in South Dakota. Scheffert did not object to exhibits 2 and 3; however, he did object to exhibits 4 and 5, stating that it was his "position that South Dakota law and Nebraska law were not sufficiently similar to warrant these being used as prior convictions for enhancement purposes." The court found that it was a fourth subsequent offense for driving while under the influence of alcoholic liquor and a Class IV felony. The district court sentenced Scheffert to 15 to 48 months' imprisonment and Scheffert appealed to the Nebraska Court of Appeals.
Did the district court err when it enhanced his conviction for driving under the influence to a fourth offense? Scheffert claimed that the court erred when it relied upon the two South Dakota convictions at the enhancement hearing, because "the State . . . failed to establish that the laws of Nebraska and South Dakota were sufficiently comparable." The Court noted that Scheffert did not allege that exhibits 4 and 5, copies of his previous South Dakota convictions, were not properly authenticated. Therefore, the authenticated copies are prima facie evidence of such prior convictions. Based upon a review of exhibits 4 and 5, sufficient evidence was presented that the law which Scheffert was charged under and pled guilty to was similar to the applicable law in Nebraska at the time of his South Dakota convictions. "Those exhibits thus served as prima facie evidence of the convictions for the purpose of sentence enhancement" said the Court. "Therefore, the trial court did not abuse its discretion in finding that the prior out-of-state driving under the influence convictions were valid and could be used for enhancement purposes. This assignment of error is without merit."
Did the district court abuse its discretion when it imposed the sentence upon him? Scheffert did not allege that his sentence was not within the statutory limits for the crime he committed. Rather, Scheffert asserted that his sentence was excessive because the court ordered that this sentence run consecutively to another sentence imposed by the court for a separate conviction and because "a lesser sentence was warranted." The Court said that there is nothing in the record to suggest that the court abused its discretion when it ordered that the two sentences, imposed for two separate convictions arising out of two separate incidents, be served consecutively. "This allegation lacked merit."
Was a lesser sentence warranted? Essentially, Scheffert claimed that he should have received a lesser sentence because his criminal record consists mainly of offenses commonly associated with drug and/or alcohol use and abuse, he did not have a violent history, he has admitted his struggles with alcoholism and has undergone treatment, he apologized for his actions, and he "did not cause anyone serious harm in this case." The Court found it clear from the record that the sentence imposed upon Scheffert by the district court was not excessive. "Scheffert was convicted of a Class IV felony, and he could have been sentenced to up to 5 years' imprisonment. The sentence of 15 to 48 months' imprisonment was clearly within the statutory limits for the crime Scheffert committed, and in fact, the minimum portion of the sentence is on the low end of those limits" said the Court.
Conclusion: The Court found that the district court did not err when it enhanced Scheffert's offense to a fourth offense, nor did the court abuse its discretion when it imposed its sentence upon Scheffert. AFFIRMED.
Anselm McCrimon appealed the sentence imposed following his plea of guilty to aiding and abetting a fraudulent insurance act asserting that the district court abused its discretion in imposing a probation condition requiring minimum child support payments towards a child support arrearage. "Failure to pay any monthly payment as required shall constitute a violation of probation." Because this term of the probation order was deemed reasonable by the Nebraska Court of Appeals and is statutorily authorized, the Court found no abuse of discretion by the trial court.
State v. Mccrimon,15 Neb. App. 452 (2007)
Court of Appeals Headnotes
Sentences:
Probation and Parole. When a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute.
Revocation. Before revoking probation for failure to make required payments, the sentencing court must find the probationer failed to make sufficient bona fide efforts to make the required payments. If the failure is willful, probation can be revoked and a jail sentence imposed within the sentencing range allowed by law for the original offense. If the court finds the probationer made sufficient efforts to satisfy the probation conditions, the court can order imprisonment only if it finds alternative punishments are not adequate to satisfy the State's interests in punishment and deterrence.
Probation and Parole:
Child Support. Requiring a probationer to pay child support is statutorily authorized under Neb. Rev. Stat. § 29-2262(2)(c) (Cum. Supp. 2004).
Revocation. Once probation is imposed, the defendant's ability to pay must be considered before a court can revoke the probation and impose a jail term for violating a probation condition requiring payments.
Date Filed and Case No.: March 20, 2007. No. A-06-492.
Court Appealed From: Appeal from the District Court for Sarpy County: David K. Arterburn, Judge.
Attorneys for the Appeal: Ann C. Addison-Wageman for Anselm Mccrimon , appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Irwin, Sievers, and Carlson, Judges.
Authored By: Irwin, Judge.
Summary: McCrimon and his girlfriend filed a fraudulent insurance claim and that as a result, the insurance company involved suffered a loss of $6,296.75. In exchange for McCrimon's plea of guilty, the State agreed to reduce the initial charge against him and charged him with aiding and abetting insurance fraud, a Class I misdemeanor. At the sentencing hearing, the court stated that it had reviewed the presentence investigation (PSI) report and that because McCrimon had a prior criminal history, he would be sentenced to intensive supervision probation. The intensive supervision probation order contained the provision, "Effective June 1, 2006, and on the first day of each month thereafter, [McCrimon] shall make minimum child support payments of $200.00 per month toward child support arrearage. Failure to pay any monthly payment as required shall constitute a violation of probation." McCrimon appeal to the Nebraska Court of Appeals.
Was the trial court's imposed probation term requiring him to pay $200 toward his child support arrearages excessive?. The Court found that because the imposed probation term is reasonable and authorized by statute, the trial court did not abuse its discretion in ordering McCrimon to make such payments. Neb. Rev. Stat. § 29-2262 (Cum. Supp. 2004) provides, in relevant part: (1) When a court sentences an offender to probation, it shall attach such reasonable conditions as it deems necessary or likely to insure that the offender will lead a law-abiding life. . . . (2) The court may, as a condition of a sentence of probation, require the offender: (c) To meet his or her family responsibilities. Beyond that statute the Court write that courts in other jurisdictions have held that child support payments are a proper condition of probation for an adult criminal defendant where the criminal conviction is unrelated to the condition of support.
Is the amount McCrimon is required to pay for child support is reasonable? Nebraska Revised Statutes § 29-2262(1) requires that all probation terms be reasonable. McCrimon argued that the $200-per-month requirement is not reasonable in that he was unable to pay such amount at the time of sentencing. Here, the PSI report indicated that although McCrimon is indebted to the State of Illinois for $10,000 regarding child support arrearages and is obligated to pay $500 per month toward those arrearages, he is not currently making payments. The PSI report indicated that McCrimon was "quite evasive" regarding his present employment. He indicated that he is self-employed and makes approximately $500 per month fixing and selling items such as snowblowers, lawnmowers, and computer parts. Although the impact of the probation order here may be harsh, "it is not unreasonable to expect McCrimon to pay his preexisting child support obligation when he currently has an income and some assets."
Did the district court err in imposing the probation term that "[fjailure to pay any monthly payment as required shall constitute a violation of probation"? The Court noted that once probation is imposed, the defendant's ability to pay must be considered before a court can revoke the probation and impose a jail term for violating a probation condition requiring payments. Should McCrimon be unable to pay $200 per month in child support, the trial court cannot revoke his probation and impose a prison term until it finds that his failure to pay is willful or that alternative punishments are not adequate to satisfy the State's interests in punishment and deterrence. Because the imposed probation term is reasonable and statutorily authorized, the Court found that the trial court did not abuse its discretion.
Conclusion: The Court concluded that the district court did not abuse its discretion in imposing this probation term that requires McCrimon to pay $200 per month in child support and that provides that failure to pay constitutes a violation of probation. AFFIRMED.
Anselm McCrimon appealed the sentence imposed following his plea of guilty to aiding and abetting a fraudulent insurance act asserting that the district court abused its discretion in imposing a probation condition requiring minimum child support payments towards a child support arrearage. "Failure to pay any monthly payment as required shall constitute a violation of probation." Because this term of the probation order was deemed reasonable by the Nebraska Court of Appeals and is statutorily authorized, the Court found no abuse of discretion by the trial court.
State v. Mccrimon,15 Neb. App. 452 (2007)
Court of Appeals Headnotes
Sentences:
Probation and Parole. When a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute.
Revocation. Before revoking probation for failure to make required payments, the sentencing court must find the probationer failed to make sufficient bona fide efforts to make the required payments. If the failure is willful, probation can be revoked and a jail sentence imposed within the sentencing range allowed by law for the original offense. If the court finds the probationer made sufficient efforts to satisfy the probation conditions, the court can order imprisonment only if it finds alternative punishments are not adequate to satisfy the State's interests in punishment and deterrence.
Probation and Parole:
Child Support. Requiring a probationer to pay child support is statutorily authorized under Neb. Rev. Stat. § 29-2262(2)(c) (Cum. Supp. 2004).
Revocation. Once probation is imposed, the defendant's ability to pay must be considered before a court can revoke the probation and impose a jail term for violating a probation condition requiring payments.
Date Filed and Case No.: March 20, 2007. No. A-06-492.
Court Appealed From: Appeal from the District Court for Sarpy County: David K. Arterburn, Judge.
Attorneys for the Appeal: Ann C. Addison-Wageman for Anselm Mccrimon , appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Irwin, Sievers, and Carlson, Judges.
Authored By: Irwin, Judge.
Summary: McCrimon and his girlfriend filed a fraudulent insurance claim and that as a result, the insurance company involved suffered a loss of $6,296.75. In exchange for McCrimon's plea of guilty, the State agreed to reduce the initial charge against him and charged him with aiding and abetting insurance fraud, a Class I misdemeanor. At the sentencing hearing, the court stated that it had reviewed the presentence investigation (PSI) report and that because McCrimon had a prior criminal history, he would be sentenced to intensive supervision probation. The intensive supervision probation order contained the provision, "Effective June 1, 2006, and on the first day of each month thereafter, [McCrimon] shall make minimum child support payments of $200.00 per month toward child support arrearage. Failure to pay any monthly payment as required shall constitute a violation of probation." McCrimon appeal to the Nebraska Court of Appeals.
Was the trial court's imposed probation term requiring him to pay $200 toward his child support arrearages excessive?. The Court found that because the imposed probation term is reasonable and authorized by statute, the trial court did not abuse its discretion in ordering McCrimon to make such payments. Neb. Rev. Stat. § 29-2262 (Cum. Supp. 2004) provides, in relevant part: (1) When a court sentences an offender to probation, it shall attach such reasonable conditions as it deems necessary or likely to insure that the offender will lead a law-abiding life. . . . (2) The court may, as a condition of a sentence of probation, require the offender: (c) To meet his or her family responsibilities. Beyond that statute the Court write that courts in other jurisdictions have held that child support payments are a proper condition of probation for an adult criminal defendant where the criminal conviction is unrelated to the condition of support.
Is the amount McCrimon is required to pay for child support is reasonable? Nebraska Revised Statutes § 29-2262(1) requires that all probation terms be reasonable. McCrimon argued that the $200-per-month requirement is not reasonable in that he was unable to pay such amount at the time of sentencing. Here, the PSI report indicated that although McCrimon is indebted to the State of Illinois for $10,000 regarding child support arrearages and is obligated to pay $500 per month toward those arrearages, he is not currently making payments. The PSI report indicated that McCrimon was "quite evasive" regarding his present employment. He indicated that he is self-employed and makes approximately $500 per month fixing and selling items such as snowblowers, lawnmowers, and computer parts. Although the impact of the probation order here may be harsh, "it is not unreasonable to expect McCrimon to pay his preexisting child support obligation when he currently has an income and some assets."
Did the district court err in imposing the probation term that "[fjailure to pay any monthly payment as required shall constitute a violation of probation"? The Court noted that once probation is imposed, the defendant's ability to pay must be considered before a court can revoke the probation and impose a jail term for violating a probation condition requiring payments. Should McCrimon be unable to pay $200 per month in child support, the trial court cannot revoke his probation and impose a prison term until it finds that his failure to pay is willful or that alternative punishments are not adequate to satisfy the State's interests in punishment and deterrence. Because the imposed probation term is reasonable and statutorily authorized, the Court found that the trial court did not abuse its discretion.
Conclusion: The Court concluded that the district court did not abuse its discretion in imposing this probation term that requires McCrimon to pay $200 per month in child support and that provides that failure to pay constitutes a violation of probation. AFFIRMED.
