State v. Hurd , 307 Neb. 393 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    12/10/2020 01:10 AM CST
    - 393 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. HURD
    Cite as 
    307 Neb. 393
    State of Nebraska, appellee, v.
    Kenneth E. Hurd, appellant.
    ___ N.W.2d ___
    Filed October 2, 2020.   No. S-19-919.
    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. Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, which an appellate court reviews independently of the
    lower court.
    4. ____: ____. An appellate court will not resort to interpretation to
    ascertain the meaning of statutory words that are plain, direct, and
    unambiguous.
    5. Courts: Sentences. A sentencing court has wide latitude and discretion
    to impose any sentence within the statutory limits.
    Appeal from the District Court for Seward County: James C.
    Stecker, Judge. Affirmed.
    Jim K. McGough and Nathan S. Lab, of McGough Law,
    P.C., L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. HURD
    Cite as 
    307 Neb. 393
    Heavican, C.J.
    INTRODUCTION
    Kenneth E. Hurd pled no contest to a misdemeanor charge
    of child abuse. He was sentenced to 1 year’s imprisonment. He
    appealed, and we moved this case to our docket to answer the
    question of whether, under Neb. Rev. Stat. § 81-1848 (Cum.
    Supp. 2018), a victim may both fill out a victim impact state-
    ment to be included in the presentence investigation report
    and also write and read a separate letter to be offered at the
    defendant’s sentencing hearing. We conclude that the plain lan-
    guage of § 81-1848 allows both a victim impact statement and
    a written letter and that Hurd’s sentence was not excessive. We
    accordingly affirm.
    FACTUAL BACKGROUND
    Hurd was charged by information with incest. Pursuant to
    a plea agreement, Hurd subsequently pled no contest to one
    count of misdemeanor child abuse. In return for Hurd’s no con-
    test plea, the State agreed to recommend probation.
    A presentence investigation report was completed. The vic-
    tim included a victim impact statement, consisting of responses
    to a questionnaire drafted by the probation office, and ­suggested
    that she believed probation would be appropriate. The proba-
    tion officer completing the report indicated the same.
    At the sentencing hearing, the State offered a factual basis
    alleging that Hurd resided with his wife and the alleged victim
    in this case and that Hurd subjected the victim to emotional
    trauma and physical abuse. The State also requested that the
    victim be permitted to read aloud a separate letter that she had
    written to Hurd. That request was granted over Hurd’s objec-
    tion. The contents of the letter were read into the record, and
    the letter itself was entered into evidence. Hurd was subse-
    quently sentenced to 1 year’s imprisonment.
    Hurd appeals.
    - 395 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. HURD
    Cite as 
    307 Neb. 393
    ASSIGNMENTS OF ERROR
    Hurd assigns, renumbered, that the district court abused its
    discretion by (1) allowing the victim to submit a statement to
    be included in the presentence investigation report and allow-
    ing her to also read a separate letter that was then offered into
    evidence for purposes of sentencing and (2) relying on state-
    ments suggesting that Hurd had committed first degree sexual
    assault in sentencing him to the maximum 1-year sentence of
    imprisonment allowable for his conviction for misdemeanor
    child abuse.
    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. 1 An abuse of discretion occurs when a trial court’s
    decision is based upon reasons that are untenable or unreason-
    able or if its action is clearly against justice or conscience,
    reason, and evidence. 2
    [3] Statutory interpretation presents a question of law, which
    an appellate court reviews independently of the lower court. 3
    ANALYSIS
    Interpretation of § 81-1848(1)(d).
    In his first assignment of error, Hurd argues that the district
    court erred in allowing the victim to provide a victim impact
    statement for the presentence investigation report and to also
    read and offer to the court a separate, written statement.
    As relevant, § 81-1848 provides:
    (1) Victims as defined in section 29-119 shall have the
    . . . right[]:
    ....
    1
    State v. Price, 
    306 Neb. 38
    , 
    944 N.W.2d 279
    (2020).
    2
    Id. 3
        State v. Galvan, 
    305 Neb. 513
    , 
    941 N.W.2d 183
    (2020).
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    307 Nebraska Reports
    STATE v. HURD
    Cite as 
    307 Neb. 393
    (d) To be notified by the county attorney by any means
    reasonably calculated to give prompt actual notice of
    the following:
    ....
    (iv) The victim’s right to make a written or oral impact
    statement to be used in the probation officer’s prepa-
    ration of a presentence investigation report concerning
    the defendant;
    ....
    (vii) The victim’s right to submit a written impact
    statement at the sentencing proceeding or to read his or
    her impact statement submitted pursuant to subdivision
    (1)(d)(iv) of this section at the sentencing proceeding.
    We held in State v. Galindo, 4 and reiterated in State v. Thieszen, 5
    that § 81-1848 of the Nebraska Crime Victim’s Reparations Act
    provides a list of baseline rights and that the act “does not seek
    to limit the sentencing court’s traditional discretion to consider
    evidence from a variety of sources.”
    Hurd’s assignment of error presents two issues—whether
    the victim was entitled to submit both a victim impact state-
    ment under § 81-1848(1)(d)(iv) and a written impact statement
    under § 81-1848(1)(d)(vii) and whether the district court erred
    in allowing the victim to read the second impact statement
    at sentencing before making the written version part of the
    record. These issues require this court to consider the language
    of § 81-1848. There is no allegation on appeal that the State
    violated the plea agreement.
    [4] An appellate court will not resort to interpretation to
    ascertain the meaning of statutory words that are plain, direct,
    and unambiguous. 6
    In this case, the language of § 81-1848 plainly states that
    the victim had both the right to offer a written statement for
    4
    State v. Galindo, 
    278 Neb. 599
    , 670, 
    774 N.W.2d 190
    , 245 (2009).
    5
    See State v. Thieszen, 
    300 Neb. 112
    , 
    912 N.W.2d 696
    (2018).
    6
    State v. Montoya, 
    305 Neb. 581
    , 
    941 N.W.2d 474
    (2020).
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    STATE v. HURD
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    307 Neb. 393
    the presentence investigation report under subsection (1)(d)(iv)
    and to also offer a written impact statement at the time of
    sentencing under subsection (1)(d)(vii). As the State notes, the
    ability to do so seems to be a “peculiar quirk” of that section,
    but the language is nevertheless plain in allowing both. 7 The
    victim here did both, as was permitted by statute, and we find
    no error in the district court’s allowing both to be considered
    at sentencing.
    We note that Hurd objected to the written letter offered at
    sentencing on the ground that the victim had offered a written
    statement for inclusion in the presentence investigation report.
    We also note that Hurd further objected to facts relating to a
    sexual assault included in the report. But Hurd did not seek
    a continuance as a result of the reading or offering of the
    victim’s letter, nor did he argue that the information alleged
    in the letter read and offered at sentencing was unknown
    to him.
    We also observe that the same plain language set forth
    above does not explicitly reserve to a victim the right to read
    aloud a separate victim impact statement drafted for purposes
    of sentencing, as occurred in this case. But as we have previ-
    ously noted, the rights set forth in § 81-1848 are baseline rights
    and do not limit a sentencing court’s discretion to consider
    evidence from a variety of sources. Where Hurd has failed to
    demonstrate that he was prejudiced by the victim’s reading her
    letter, a written version was, in any case, made available to
    the court. 8
    The district court has discretion to consider many things in
    determining a sentence, as will be discussed below. Allowing
    this letter to be read, rather than simply offered, is consistent
    with this discretion. Hurd’s first assignment of error is with-
    out merit.
    7
    Brief for appellee at 11.
    8
    See State v. Scott, 
    284 Neb. 703
    , 
    824 N.W.2d 668
    (2012).
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    307 Nebraska Reports
    STATE v. HURD
    Cite as 
    307 Neb. 393
    Consideration of Charges Dropped
    Pursuant to Plea Agreement.
    In his second assignment of error, Hurd assigns that the
    district court erred in relying on allegations originally charged,
    but ultimately dismissed, in order to sentence him to the maxi-
    mum sentence allowed for his conviction.
    The State relied on State v. Janis 9 to support its position that
    it was not an abuse of discretion for the district court to con-
    sider dismissed charges when sentencing a defendant:
    “It must be assumed, we think, that a trial judge knows
    the difference between information that is pertinent to the
    issue before him and that which is unfounded rumor. The
    law invests a trial judge with a wide discretion as to the
    sources and types of information used to assist him in
    determining the sentence to be imposed within statutory
    limits.” It is hard for us to understand how a trial court
    may properly consider information of the appellant’s
    behavior if no charges are filed, but may not consider the
    underlying facts if a charge is filed and later dismissed,
    not because the facts are untrue, but due to a plea bargain.
    While we do not mean to suggest . . . that a trial court is
    free to consider any matter having no relevance or basis,
    we do mean to say that a trial court is, indeed, given wide
    discretion and where it appears that a sentence imposed
    is within statutory and constitutional limitations, it will
    not be disturbed on appeal in the absence of an abuse of
    discretion on the part of the trial court.
    Hurd argues that his case is distinguishable from Janis
    because “the district court in this matter improperly con-
    cluded that [Hurd] was guilty of a more serious and dismissed
    charge and abused its discretion by excluding consideration
    of a probationary sentence because the court believed that
    [Hurd] would not admit to the more serious charge.” 10 Having
    9
    State v. Janis, 
    207 Neb. 491
    , 495, 
    299 N.W.2d 447
    , 449-50 (1980) (quot­
    ing State v. Rapp, 
    184 Neb. 156
    , 
    165 N.W.2d 715
    (1969)).
    10
    Brief for appellant at 12.
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    307 Nebraska Reports
    STATE v. HURD
    Cite as 
    307 Neb. 393
    reviewed the district court’s comments made at sentencing, we
    disagree with this characterization.
    [5] As noted above, we have observed that a sentencing
    court has wide latitude and discretion to impose any sentence
    within the statutory limits:
    “It is a long accepted practice in this state that before
    sentencing a defendant after conviction a trial judge has
    a broad discretion in the source and type of evidence he
    may use to assist him in determining the kind and extent
    of punishment to be imposed within the limits fixed by
    statute. Highly relevant, if not essential, to his determina-
    tion of an appropriate sentence is the gaining of knowl-
    edge concerning defendant’s life, character, and previous
    conduct. In gaining this information, the trial court may
    consider reports of probation officers, police reports, affi-
    davits, and other information including his own observa-
    tions of the defendant. A presentence investigation has
    nothing to do with the issue of guilt. The rules governing
    due process with respect to the admissibility of evidence
    are not the same in a presentence hearing as in a trial in
    which guilt or innocence is the issue. The latitude allowed
    a sentencing judge at a presentence hearing to determine
    the nature and length of punishment, other than in recidi-
    vist cases, is almost without limitation as long as it is
    relevant to the issue.” 11
    The sentence imposed was supported by the facts of this
    case and the victim’s statement, and it was within the district
    court’s discretion. Hurd’s second assignment of error is with-
    out merit.
    CONCLUSION
    We affirm the judgment of conviction and the sentence of
    the district court.
    Affirmed.
    11
    Rapp, supra note 
    9, 184 Neb. at 157-58
    , 165 N.W.2d at 716.