State v. Kruse , 215 Neb. 408 ( 1983 )

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338 N.W.2d 781 (1983) 215 Neb. 408
STATE of Nebraska, Appellee,
v.
Sharon L. KRUSE, Appellant.
No. 83-222.
Supreme Court of Nebraska.
September 30, 1983.
Daniel A. Fullner of Moyer, Moyer, Egley & Fullner, Madison, for appellant.

Paul L. Douglas, Atty. Gen., and Sharon M. Lindgren, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, CAPORALE and SHANAHAN, JJ.

PER CURIAM.

The defendant appeals as excessive a sentence of not less than 3 nor more than 5 years for what was described in the amended information as the May 6, 1982, Class III felony offense of aiding and abetting the delivery of marijuana. Included in the record in support of her claim that there exists a disparity in her sentence with that received by her coconspirator is the presentence investigation of her brother, Robert Kruse.

The defendant took the phone call in which a cooperating individual asked to buy some marijuana. She arranged with her brother to fill the order, and the two of them made the delivery, with the brother receiving and taking all of the purchase price. The brother was also charged with two additional counts of delivery of a controlled substance which did not involve the defendant.

The defendant is 38 years of age; the brother, 37 years of age. The defendant has a record of approximately 19 misdemeanors involving intoxication, traffic, and larceny, and one felony conviction of second degree assault for which she was sentenced to a term of from 1 to 2 years in the Nebraska Center for Women at York. She *782 was paroled, which parole was revoked, and she served the entire maximum sentence.

The brother's record includes approximately 30 misdemeanors for traffic and alcohol offenses, and larceny. He has no felony convictions.

Although the records of the two individuals support some disparity in sentences, when consideration is given to the degree of involvement of the defendant and her coconspirator, the additional offense of which the coconspirator was convicted, and the prior records of the two, we believe that the sentence imposed upon the defendant was excessive as resulting from an abuse of discretion on the part of the trial court. State v. Komor, 213 Neb. 376, 329 N.W.2d 120 (1983).

The sentence of the District Court is modified to one of imprisonment of not less than 18 months nor more than 3 years to the Department of Correctional Services.

AFFIRMED AS MODIFIED.

McCOWN, J., not participating.