State v. Thieszen , 300 Neb. 112 ( 2018 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/24/2018 01:09 AM CDT
    - 112 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    State of Nebraska, appellee, v.
    Sydney L. Thieszen, appellant.
    ___ N.W.2d ___
    Filed June 1, 2018.     No. S-17-539.
    1.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    2.	 Judges: Words and Phrases. A judicial abuse of discretion exists when
    the reasons or rulings of a trial judge are clearly untenable, unfairly
    depriving a litigant of a substantial right and denying just results in mat-
    ters submitted for disposition.
    3.	 Sentences: Evidence. A sentencing court has broad discretion as to
    the source and type of evidence and information which may be used
    in determining the kind and extent of the punishment to be imposed,
    and evidence may be presented as to any matter that the court deems
    relevant to the sentence.
    4.	 Sentences. The appropriateness of a sentence is necessarily a subjec-
    tive 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.
    5.	 Sentences: Appeal and Error. Where a sentence imposed within the
    statutory limits is alleged on appeal to be excessive, the appellate court
    must determine whether the sentencing court abused its discretion in
    considering and applying the relevant factors as well as any applicable
    legal principles in determining the sentence to be imposed.
    6.	 Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2)
    mentality, (3) education and experience, (4) social and cultural back-
    ground, (5) past criminal record or record of law-abiding conduct,
    and (6) motivation for the offense, as well as (7) the nature of the
    offense and (8) the amount of violence involved in the commission of
    the crime.
    - 113 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    7.	 ____. Where a defendant was under the age of 18 when he or she com-
    mitted a Class IA felony, 
    Neb. Rev. Stat. § 28-105.02
     (Reissue 2016)
    dictates that the sentencing judge must also consider mitigating factors,
    such as the defendant’s (1) age at the time of the offense, (2) impetuos-
    ity, (3) family and community environment, and (4) ability to appreciate
    risks and consequences of the conduct, as well as (5) the outcome of a
    comprehensive mental health evaluation of the defendant conducted by
    an adolescent mental health professional licensed in Nebraska.
    Appeal from the District Court for York County: James C.
    Stecker, Judge. Affirmed.
    Jeffery A. Pickens, of Nebraska Commission on Public
    Advocacy, for appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ., and Vaughan, District Judge.
    Cassel, J.
    I. INTRODUCTION
    A court sentenced Sydney L. Thieszen to life imprison-
    ment for a murder he committed at age 14. Pursuant to Miller
    v. Alabama,1 Thieszen obtained postconviction relief. The
    court resentenced Thieszen to 70 years’ to life imprisonment.
    Because we find no abuse of discretion by the court, we affirm
    Thieszen’s sentence.
    II. BACKGROUND
    1. Crime and Direct A ppeal
    The facts and circumstances pertaining to Thieszen’s crimes
    are set out in greater detail in our decision resolving his
    direct appeal.2 In 1987, 14-year-old Thieszen shot and killed
    1
    Miller v. Alabama, 
    567 U.S. 460
    , 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012).
    2
    See State v. Thieszen, 
    232 Neb. 952
    , 
    442 N.W.2d 887
     (1989).
    - 114 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    his 12-year-old sister, Sacha L. Thieszen. The State charged
    Thieszen with first degree murder and use of a firearm in the
    commission of a felony. Pursuant to a plea bargain, Thieszen
    pled guilty to second degree murder and the use of a firearm
    charge. In 1988, the district court imposed a sentence of life
    imprisonment for second degree murder and a consecutive
    sentence of 80 to 240 months’ imprisonment for the fire-
    arm conviction.
    On appeal, Thieszen claimed that the district court abused
    its discretion in refusing to transfer his case to juvenile court
    and in imposing an excessive sentence on the firearm charge.
    We disagreed. We recognized that there was evidence Thieszen
    could possibly be successfully rehabilitated during the approx-
    imately 4 years that the juvenile court maintained jurisdiction
    over him, but that the record also supported the court’s find-
    ings that the crime was violent and that Thieszen may require
    treatment beyond the age of majority.3 We noted that the
    sentence for the firearm conviction was within the statutory
    limits, and we could not say that the court abused its discretion
    in imposing it.4
    2. First Postconviction
    and R etrial
    In 1994, Thieszen filed a motion for postconviction relief,
    alleging that the operative information was defective because
    it failed to allege he acted with malice. The district court sus-
    tained the motion and vacated Thieszen’s convictions.
    The State then filed a second amended information which
    charged Thieszen with first degree murder and use of a firearm
    to commit a felony. A jury convicted Thieszen of the charges.
    The court again imposed sentences of life imprisonment for
    the murder conviction and a consecutive term of 80 to 240
    months’ imprisonment for the use of a firearm conviction.
    3
    See 
    id.
    4
    See 
    id.
    - 115 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    3. Second Postconviction
    (a) Initial Proceedings
    In 2013, Thieszen filed a motion for postconviction relief
    pursuant to the decision in Miller.5 The district court vacated
    Thieszen’s life sentence, and the State appealed. We affirmed
    the judgment and remanded the cause for resentencing.6
    (b) Mitigation Hearing
    In March 2017, the district court received extensive evi-
    dence during a mitigation hearing.
    Thieszen was born into an abusive environment. His natu-
    ral mother was an alcoholic. On one occasion while she
    was intoxicated, she tried to burn Thieszen’s eyes out with
    a lighter. She stomped on him at one time. When Thieszen
    was 2 or 3 years old, she threw him in a swimming pool. She
    tried to run his hand through a meat grinder. Thieszen’s natu-
    ral mother also smashed his toys as punishment and locked
    him in closets. When Thieszen was approximately age 4, he
    was removed from his natural mother’s custody due to abuse
    and neglect.
    After multiple foster care placements, Thieszen was placed
    with Edwin and Joyce Thieszen. Edwin and Joyce adopted
    Thieszen when he was 9 years old. At that time, Edwin and
    Joyce had three biological children and two other adopted
    children. Initially, Thieszen wanted to keep his distance from
    the family. But after approximately 1 year, he became very
    lovable and outgoing.
    Although Edwin and Joyce offered a stable and structured
    environment, it may not have been a nurturing one. A doctor
    who evaluated Thieszen in connection with the adoption proc­
    ess expressed some reservation that the family’s strong reli-
    gious beliefs may be too restrictive for a child with Thieszen’s
    background. Edwin and Joyce believed in corporal punishment
    5
    Miller v. Alabama, 
    supra note 1
    .
    6
    See State v. Thieszen, 
    295 Neb. 293
    , 
    887 N.W.2d 871
     (2016).
    - 116 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    for rule violations. Edwin testified that he spanked the chil-
    dren when no other punishment worked and that he used his
    hand, a belt, a hose, or “whatever was handy.”
    When Thieszen was 12 years old, there was “a sudden
    drastic change in his behavior.” His report cards reflected
    much lower grades, he ceased performing his chores properly,
    and he began shooting holes in the family’s buildings and
    machinery. In January 1986, Thieszen began seeing Sandra
    Kroeker, a counselor, due to concerns about his poor grades
    and dishonesty. Kroeker felt that there was a great correla-
    tion between Thieszen’s adolescent behavior and the abusive
    relationship Thieszen had with his natural mother. Kroeker
    diagnosed Thieszen with a conduct disorder. She testified that
    Thieszen was immature in his ability to formulate and maintain
    relationships, to express himself, to engage in effective deci-
    sionmaking, and to control impulses.
    In December 1986, the family learned that Thieszen had
    been sexually molesting one of the family’s foster children.
    After that point, Thieszen did not feel loved or wanted by his
    family. And he felt ostracized at school because the children
    there knew of his sexual assault on his foster sister.
    There was also evidence of voyeuristic behavior. One of
    Thieszen’s sisters testified that she noticed him watching her
    as she sunbathed. He pried open the doorjamb on the bath-
    room and would consistently be outside the bathroom door
    while she was showering or changing. At one point, Thieszen
    entered her bedroom during the middle of the night and lifted
    her bed covers.
    By the time Thieszen was 13 or 14 years old, he did not
    have a good relationship with Joyce. He did not feel comfort-
    able discussing issues with her. One of Thieszen’s classmates
    testified that Thieszen often spoke about killing Joyce.
    On the day of the murder, Thieszen wanted to run away
    from home because he knew he was going to be punished
    for a wrongdoing. When Sacha tried to stop Thieszen, he hit
    her with a wooden rod, which caused bleeding. Sacha ran up
    - 117 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    the stairs to the bathroom, and as she was leaning over the
    sink, Thieszen shot her in the back of the head. He put her
    body in the bathtub and shot her twice more. Thieszen then
    took the family’s van and left. He was apprehended in Kansas
    days later.
    The court received the testimony of two psychiatrists that
    had been offered in connection with Thieszen’s request to
    transfer his criminal case to juvenile court. One psychiatrist
    opined that Thieszen was competent to stand trial and that he
    was sane at the time of the offense. He found significance in
    the type of abuse that Thieszen had experienced as a very small
    child and the number of foster homes that he had been in prior
    to adoption. He testified that Thieszen had a conduct disor-
    der, meaning that he displayed behavior that was not socially
    acceptable. The other psychiatrist, who interviewed Thieszen
    in December 1987, testified that Thieszen was not psychotic
    and was of average to slightly above-­average intelligence.
    Dr. Kayla Pope, a board-certified child and adolescent psy-
    chiatrist, testified at the mitigation hearing. She testified that
    neuroscience research demonstrated that adolescent brains
    were different from adult brains. Adolescent brains were in
    “developmental transition” and were “characterized by nov-
    elty seeking, risk taking, poor judgment and increased sub-
    mission to peer pressure.” Pope explained that the prefrontal
    cortex, which was the last part of the brain to develop, was
    the part of the brain that overrides impulsive behavior and
    allows the weighing of the risks and benefits of the decisions
    one makes. Pope testified that there are significant differ-
    ences between the brains of a 14-year-old and a 17-year-old.
    According to Pope, adolescents “are thinking in the moment”
    and lack the ability to see the long-term consequences of
    their actions.
    Pope testified that high levels of stress can impact brain
    development. Early trauma would impair a child’s develop-
    mental process. According to Pope, abuse by Thieszen’s natu-
    ral mother would interfere with the formation of a secure
    - 118 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    attachment and would make Thieszen “untrusting” and “emo-
    tionally and behaviorally very disregulated not knowing how
    to respond to his environment.” Pope testified that Thieszen’s
    early trauma and multiple placements in foster care affected
    “how he would see the world and how he would respond to
    the world.” And due to Thieszen’s experience of being abused
    by his natural mother, Pope testified that corporal punishment
    would be very inappropriate and would likely bring up prior
    trauma and “make [Thieszen] more reactive as opposed to
    helping him calm down and think through the situation.”
    Pope reported that there was ample evidence that Thieszen
    was impetuous beyond what was normal for his chrono-
    logical age. She testified that Thieszen was very immature,
    impulsive, and unable to calm himself at the time of the mur-
    der. Pope believed Thieszen was behaving in an impulsive
    way at the time of the murder and that he did not appreci-
    ate the consequences of what he was doing. She reported
    that Thieszen “struggled to modify his behavior in light of
    the consequences he faced.” She noted that Edwin stated
    Thieszen would repeatedly misbehave and would say that he
    did not know why he did the things he did. As to Thieszen’s
    intellectual capacity, Pope testified that he had a very high
    IQ. But she explained that intelligence is the ability to know
    things and to figure things out; it is not a marker for develop-
    ment or maturity.
    Pope performed a comprehensive mental health evaluation.
    With regard to Thieszen’s prenatal history, Pope had concern
    that his natural mother may have used drugs and alcohol
    while pregnant, which would impact Thieszen’s brain devel-
    opment and behavior. She testified that Thieszen had no sig-
    nificant medical history and no substance abuse history prior
    to the murder.
    Pope testified that Thieszen had many infractions during
    his first few years in prison, but that there was a “precipi-
    tous drop” in those infractions as he aged. She saw no evi-
    dence that Thieszen engaged in aggression or violent sexual
    - 119 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    behavior while incarcerated. Pope testified that Thieszen did
    not meet criteria for any mental health issue. She did not
    believe Thieszen had an antisocial personality disorder, stat-
    ing that there was no evidence of any antisocial behavior in
    the past 30 years. Pope testified that Thieszen had earned
    his diploma through the GED program, had taken additional
    coursework, and had been helping other inmates with their aca-
    demic pursuits. Although there was evidence that Thieszen had
    engaged in substance abuse while in prison, his last infraction
    for it was in 2000. Pope testified that Thieszen had over 200
    misconduct reports, but that many were for minor violations,
    such as tattooing activities or having items not permitted in his
    cell. Records showed that as of January 18, 2017, Thieszen had
    only four misconduct reports in the previous 5 years. Of those
    reports, the most serious offense was possessing or receiving
    unauthorized articles, for which Thieszen received 7 days of
    room restriction.
    Pope testified that Thieszen had formed several significant
    relationships that he had kept for several years. This demon-
    strated his ability to form a support network and to cultivate
    relationships that would help sustain him in the community.
    And Pope testified that it was remarkable Thieszen had such
    ability, because he had difficulty forming attachments early
    in development, and that his ability to form such relationships
    now is an indication of his emotional maturity. Pope testified
    that Thieszen expressed remorse for the crime.
    Dr. Kirk Newring performed a psychological evaluation
    of Thieszen. On a diagnostic tool to assess violence risk and
    psychopathy, Thieszen scored a 12, which was higher than the
    community average of 6, but lower than the typical inmate
    score of 22. Newring testified that individuals with scores
    below 20 typically are not considered psychopathic. Newring
    administered a personality inventory, which did not reveal any
    major mental health problems. A tool to measure intelligence
    showed that Thieszen had an average to above-average IQ.
    Based on a violence risk assessment, Newring placed Thieszen
    - 120 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    at a low risk for future acts of violence. A violence risk assess-
    ment tool showed that Thieszen “had some protective factors
    present, which is predictive of a favorable response to com-
    munity transition.” Those factors were intelligence, empathy,
    coping skills, and self-control.
    Newring’s diagnostic impressions were adjustment disor-
    der with anxiety and antisocial personality disorder. Newring
    explained that Thieszen met the criteria for a diagnosis of anti-
    social personality disorder but cautioned that Thieszen had not
    shown any of that criteria in the last decade.
    Newring did not administer any sex offender assessment
    tools because Thieszen, from the age of 18, had no sex-
    related misconduct reports or charges. According to Newring,
    Thieszen reported engaging in physical intimacies with female
    staff members over the course of his incarceration. Newring
    testified that those relationships would be potentially unhealthy
    if they were still occurring, but that Thieszen described them
    as “historical.”
    In 2014, Newring administered a self-report measure to
    assess the likelihood of substance abuse dependence. Based on
    the testing, Newring had concerns that Thieszen would meet
    criteria for cannabis use disorder.
    Newring testified that Thieszen expressed remorse, regret,
    and sorrow for his crime. According to Newring, Thieszen
    “was likely in a very emotionally aroused situation and not
    able to do rational, cognitive thinking that we would expect to
    see in a cold logic situation.” Newring explained that an emo-
    tionally aroused 14-year-old is different from a coldly logical
    14-year-old and that a 14-year-old is much different from an
    18-year-old. Newring asked Thieszen what, if anything, would
    he change, and Thieszen answered that he would have told the
    judge he did not want to be adopted by Edwin and Joyce.
    A corrections officer at the prison who sees Thieszen on
    nearly a daily basis testified that Thieszen was “[p]robably” a
    good inmate. According to the officer, Thieszen did not cause
    trouble and was respectful to corrections officers and other
    - 121 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    inmates. The officer further testified that Thieszen “just always
    does everything he’s supposed to do” and that “[i]f you tell him
    to do something, he does it.” According to the officer, Thieszen
    knits, crochets, exercises, and paints. He testified that Thieszen
    has many visitors. Five individuals wrote letters in strong sup-
    port of Thieszen. A few of those individuals attached pictures
    of Thieszen’s artwork and craftwork.
    (c) Resentencing
    At the time of resentencing, Thieszen was 44 years old and
    had been incarcerated since 1987. Before imposing a sentence,
    the court addressed the factors set forth in 
    Neb. Rev. Stat. § 28-105.02
    (2) (Reissue 2016). The court sentenced Thieszen
    to 70 years’ to life imprisonment for first degree murder, to be
    served consecutively to the sentence he was currently serving
    of 80 to 240 months’ imprisonment for the firearm conviction.
    Thieszen filed a timely appeal.
    III. ASSIGNMENTS OF ERROR
    Thieszen assigns, reordered, that the district court abused its
    discretion in (1) failing to strike certain letters from the pre-
    sentence report, (2) allowing improper victim impact testimony
    at the sentencing hearing, (3) imposing an excessive sentence,
    (4) imposing a de facto sentence of life imprisonment without
    parole in the absence of a finding of irreparable corruption, and
    (5) imposing a disproportionate sentence upon him.
    IV. STANDARD OF REVIEW
    [1,2] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.7 A judicial abuse of discretion exists when the rea­
    sons or rulings of a trial judge are clearly untenable, unfairly
    depriving a litigant of a substantial right and denying just
    results in matters submitted for disposition.8
    7
    State v. Russell, 
    299 Neb. 483
    , 
    908 N.W.2d 669
     (2018).
    8
    
    Id.
    - 122 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    V. ANALYSIS
    1. Letters in Presentence R eport
    During the resentencing hearing, Thieszen’s counsel asked
    that a number of letters in the presentence report be stricken.
    He did not believe it was appropriate for the court to receive
    letters from anonymous sources, and the court responded that
    it would not consider anonymous letters. Thieszen’s counsel
    also requested that the court not consider specific informa-
    tion in letters that was baseless or inflammatory. The court
    stated that it would give such a letter “the weight and cred-
    ibility that it’s due and disregard any portions not supported
    by the record.”
    On appeal, Thieszen argues that the court abused its dis-
    cretion by overruling his objections to letters which were
    submitted by anonymous sources, which contained baseless
    information, or which were intended to intimidate the judge
    and encourage the imposition of an inappropriate sentence. We
    disagree for two main reasons.
    First, to some extent, the court granted the relief Thieszen
    requested. The court stated that it would not consider unsigned
    letters. The presentence report shows that the court struck a
    number of letters. With regard to letters to which Thieszen
    objected but which the court did not strike, the court stated that
    it would give each letter the weight and credibility it was due
    and that it would disregard portions that were not supported by
    the record.
    [3] Second, a sentencing court has broad discretion as to the
    source and type of evidence and information which may be
    used in determining the kind and extent of the punishment to
    be imposed, and evidence may be presented as to any matter
    that the court deems relevant to the sentence.9 We cannot say
    that the court abused its broad discretion in declining to strike
    all of the letters to which Thieszen objected.
    9
    State v. Casares, 
    291 Neb. 150
    , 
    864 N.W.2d 667
     (2015).
    - 123 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    2. Victim Impact Testimony
    The State informed the court that one of Thieszen’s sis-
    ters wished to read a letter to the court under 
    Neb. Rev. Stat. § 81-1848
     (Cum. Supp. 2016). Thieszen’s counsel objected on
    the basis that the sister is not a “victim” under the statute. But
    the court stated that it would “give her an opportunity to read
    her letter as an immediate family member.”
    A statute sets forth rights for victims of crimes.10 Such a
    victim has the right to submit a written impact statement at sen-
    tencing or to read his or her impact statement at sentencing.11
    But the statute gives such rights to “victims” as defined by
    
    Neb. Rev. Stat. § 29-119
     (Reissue 2016). Under § 29-119(2)(b),
    a victim in the case of a homicide is “the nearest surviving
    relative under the law as provided by section 30-2303 but does
    not include the alleged perpetrator of the homicide.”
    Thieszen contends that the court abused its discretion
    in allowing improper victim impact testimony. Because
    Thieszen’s parents are alive, Thieszen contends that they, but
    not his sister, had the right to read their impact statements
    at sentencing.
    We rejected a similar challenge in State v. Galindo.12 In that
    case, the defendant objected to victim impact statements on
    the ground that not all of the family representatives qualified
    as a “nearest surviving relative” under § 29-119. The sentenc-
    ing court overruled the objection, and we found no error. We
    stated: “The definition of ‘victim’ upon which [the defend­
    ant] relies merely provides for a baseline right, under the
    [Nebraska Crime Victim’s Reparations Act], to give a victim
    impact statement. The [act] does not seek to limit the sentenc-
    ing court’s traditional discretion to consider evidence from
    a variety of sources.”13 Because we continue to believe this
    10
    See § 81-1848.
    11
    See § 81-1848(1)(d)(vii).
    12
    State v. Galindo, 
    278 Neb. 599
    , 
    774 N.W.2d 190
     (2009).
    13
    
    Id. at 670
    , 
    774 N.W.2d at 245
    .
    - 124 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    reasoning is sound, we decline Thieszen’s invitation to over-
    rule that aspect of Galindo.
    The court did not abuse its discretion in allowing an oral
    statement from Thieszen’s sister. The State advised the court
    that the victims as defined in § 29-119—i.e., Edwin and
    Joyce—“are elderly, they live out of state and for various rea-
    sons don’t want to participate in the process.” It was not unten-
    able for the court to allow the victims’ daughter to be heard
    instead. This assignment of error lacks merit.
    3. Excessiveness of Sentence
    Thieszen’s primary complaint on appeal is that his sentence
    is excessive for various reasons. The court imposed a sen-
    tence of 70 years’ to life imprisonment. The sentence is within
    the statutory limits of 40 years’ to life imprisonment.14 But
    Thieszen contends that the court abused its discretion in impos-
    ing the sentence.
    Thieszen begins by comparing his sentence to that imposed
    in State v. Jackson.15 In that case, the victim died of multiple
    gunshot wounds. The State filed identical informations against
    the defendant and two others, charging each with first degree
    murder and use of a deadly weapon during the commission of
    a felony. At the time of the murder, the defendant was nearly
    18 years old. A jury found the defendant guilty of murder but
    not guilty of the weapon charge, and the court imposed a sen-
    tence of life imprisonment. Because the defendant was under
    18 years old at the time of the murder, he was later resen-
    tenced to 60 to 80 years’ imprisonment. Thieszen points out
    that he was younger than the defendant in Jackson, but that the
    defend­ant in Jackson received a lesser sentence.
    [4] The lesser sentence imposed in Jackson does not per-
    suade us that Thieszen’s sentence constitutes an abuse of discre-
    tion. Significantly, there were questions about the defendant’s
    14
    See § 28-105.02(1).
    15
    State v. Jackson, 
    297 Neb. 22
    , 
    899 N.W.2d 215
     (2017).
    - 125 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    level of participation in Jackson. Here, there is no dispute that
    Thieszen murdered Sacha. But more importantly, we do not
    “‘color match’” sentences.16 It would be virtually impossible
    to find two murder cases which are the same in all respects.17
    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 cir-
    cumstances surrounding the defendant’s life.18 The fact that a
    different offender with a different background received a lesser
    sentence for a crime committed under different circumstances
    does not mean that Thieszen’s sentence was excessive.
    [5-7] Where a sentence imposed within the statutory limits
    is alleged on appeal to be excessive, the appellate court must
    determine whether the sentencing court abused its discretion
    in considering and applying the relevant factors as well as any
    applicable legal principles in determining the sentence to be
    imposed.19 In determining a sentence to be imposed, relevant
    factors customarily considered and applied are the defendant’s
    (1) age, (2) mentality, (3) education and experience, (4) social
    and cultural background, (5) past criminal record or record
    of law-abiding conduct, and (6) moti­   vation for the offense,
    as well as (7) the nature of the offense and (8) the amount of
    violence involved in the commission of the crime.20 Because
    Thieszen was under the age of 18 when he committed a
    Class IA felony, § 28-105.02 dictates that the sentencing judge
    must also consider mitigating factors, such as the defendant’s
    (1) age at the time of the offense, (2) impetuos­ity, (3) family
    and community environment, and (4) ability to appreciate risks
    and consequences of the conduct, as well as (5) the outcome
    16
    See State v. Ellis, 
    281 Neb. 571
    , 613, 
    799 N.W.2d 267
    , 302 (2011).
    17
    
    Id.
    18
    State v. Castaneda, 
    295 Neb. 547
    , 
    889 N.W.2d 87
     (2017), cert. denied ___
    U.S. ___, 
    138 S. Ct. 83
    , 
    199 L. Ed. 2d 54
    .
    19
    State v. Russell, 
    supra note 7
    .
    20
    
    Id.
    - 126 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    of a comprehensive mental health evaluation of the defendant
    conducted by an adolescent mental health pro­fessional licensed
    in Nebraska.21
    The district court considered the pertinent sentencing fac-
    tors. It recognized that Thieszen was 14 years old at the time
    of the offense and that at the time of resentencing, he was
    divorced and had employment through “prison industries.” In
    considering factors under § 28-105.02(2), the court acknowl-
    edged that evaluations showed Thieszen was impetuous and
    immature at the time of the offense. However, the court noted
    that Thieszen purchased shells prior to the crime and that
    because his gun had been taken away from him, there “was no
    valid reason for [him] to purchase or possess shells except to
    carry out previous threats to [his] family.” The court observed
    that Thieszen’s natural mother was abusive and that he was
    raised in an abusive environment until age 4. The court stated
    that Edwin and Joyce raised Thieszen in a structured environ-
    ment, that they disciplined Thieszen to correct his behavior, but
    that Thieszen did not modify his behavior after being caught
    doing something wrong. The court noted that Thieszen had
    above-average intellectual capacity. It recognized that Thieszen
    had never been hospitalized for any mental health reason and
    that Newring indicated Thieszen was well adjusted. We can-
    not say that the court abused its discretion in its assessment of
    the factors.
    We are cognizant of factors militating against Thieszen’s
    culpability for the crime. According to Pope, Thieszen’s trau-
    matic early childhood likely influenced his emotional and
    cognitive development. There was evidence that Thieszen was
    struggling mentally and emotionally prior to the murder and
    that the only treatment provided was occasional therapy ses-
    sions. According to Pope, “these factors would have interfered
    with [Thieszen’s] ability to make rational decisions, appro-
    priately consider risks and consequences, and to regulate his
    21
    See id.
    - 127 -
    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. THIESZEN
    Cite as 
    300 Neb. 112
    behavior and impulses above and beyond the limitations that
    are associated with adolescence.” Pope observed that over
    time, Thieszen had taken on the roles of teacher and advi-
    sor to other inmates and to the social network he had formed
    outside of prison. These factors support the imposition of a
    minimum sentence that is less than life imprisonment. The
    court, by setting the minimum sentence at 70 years, imposed
    such a sentence.
    Thieszen also claims that his sentence amounted to a de
    facto life sentence and that such a sentence was disproportion-
    ate to the offense. According to Thieszen, his sentence of 70
    years’ to life imprisonment means he will not be parole eligible
    until age 53 and, if paroled, he will be on parole for the rest of
    his life. But the sentence provides Thieszen with a “meaningful
    and realistic opportunity to obtain release.”22 We have rejected
    similar claims that a lengthy term-of-years sentence was a de
    facto sentence of life imprisonment,23 and we see no reason to
    revisit that conclusion here.
    VI. CONCLUSION
    We conclude that the district court did not abuse its discre-
    tion in overruling Thieszen’s objections to letters in the pre-
    sentence report, in allowing Thieszen’s sister to read her vic-
    tim impact statement at the sentencing hearing, or in imposing
    the sentence. We therefore affirm Thieszen’s murder sentence
    of 70 years’ to life imprisonment.
    A ffirmed.
    22
    State v. Smith, 
    295 Neb. 957
    , 979, 
    892 N.W.2d 52
    , 66 (2017), cert. denied
    ___ U.S. ___, 
    138 S. Ct. 315
    , 
    199 L. Ed. 2d 208
    .
    23
    See, State v. Russell, 
    supra note 7
    ; State v. Smith, 
    supra note 22
    .