State v. Harder ( 2017 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. HARDER
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JESSE R. HARDER, APPELLANT.
Filed July 3, 2017. No. A-16-1156.
Appeal from the District Court for Fillmore County: VICKY L. JOHNSON, Judge. Affirmed
in part, and in part vacated and remanded with directions.
Bradley T. Kalkwarf, Fillmore County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
INBODY, RIEDMANN, and ARTERBURN, Judges.
INBODY, Judge.
INTRODUCTION
Jesse R. Harder appeals his plea-based convictions of attempted child abuse, a Class III
felony, and child abuse, a Class IIIA felony. His sole assignment of error on appeal is that the
sentences imposed were excessive.
STATEMENT OF FACTS
Harder was originally charged by information with two counts of first degree sexual assault
of a child, Class IB felonies; third degree sexual assault of a child, a Class IIIA felony; and
subsequent offense third degree sexual assault of a child, a Class IC felony. This information was
later amended to add two counts of child abuse, Class IIIA felonies.
Pursuant to a plea agreement, Harder pled no contest to count I, attempted child abuse of a
male juvenile victim causing serious emotional distress, a Class III felony, which occurred prior
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to the L.B. 605 amendments; and pled guilty to count II, child abuse of a female juvenile victim,
a Class IIIA felony, which occurred after the L.B. 605 amendments. The factual basis provided by
the State included exhibit 1, which was the affidavit in support of the arrest warrant which was
sealed due to the age of the two victims. The affidavit provided, in general terms, that the male
juvenile victim reported that Harder had sexually assaulted him both orally and anally. The State
also set forth that the male juvenile victim suffered serious emotional stress requiring counseling
as a result of Harder’s actions. The sealed affidavit provided evidence that the attempted child
abuse occurred in Fillmore County within the timeframe alleged. Further, regarding the child abuse
charge, the State set forth in its factual basis that Harder admitted to providing, and smoking
marijuana with, the female juvenile victim. The presentence investigation report indicated that the
marijuana incident would have occurred in Fillmore County within the timeframe alleged.
At the time of the preparation of the presentence investigation report, Harder was 30 years
old with one dependent. Although the PSR indicated in one place that Harder was single, the record
indicated that Harder was married to the mother of the victims in this case. Harder’s criminal
history includes convictions for third degree sexual assault of a child, disturbing the peace, four
convictions for possession or use of drug paraphernalia, eight convictions for failure to appear,
three convictions for driving under suspension before reinstatement, three convictions for carrying
a concealed weapon, three convictions for possession of marijuana (1 ounce or less), two
convictions for attempt of a Class IIIA or Class IV felony, and various traffic offenses. Harder’s
score on the level of service/case management inventory placed him in the very high risk to
reoffend. Additionally, he scored as a high risk on the Vermont Assessment of Sex Offender Risk
“due to his prior sex offense and the force used in the current offense.”
The court sentenced Harder to 19 to 20 years’ imprisonment on the attempted child abuse
conviction with credit for 243 days served. The court sentenced Harder to 3 years’ imprisonment
on the child abuse conviction and ordered the sentences to run consecutively. The district court
also found that the record showed evidence of sexual penetration and ordered Harder to register as
a sex offender for the remainder of his lifetime.
ASSIGNMENT OF ERROR
Harder’s sole assignment of error is that the sentences imposed are excessive.
STANDARD OF REVIEW
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse
of discretion by the trial court. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017). 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.
ANALYSIS
COUNT I: ATTEMPTED CHILD ABUSE
Harder was convicted of attempted child abuse, a Class III felony, with the offense
committed between May 15, 2012, and October 8, 2013, making the offense pre-L.B. 605. At the
time of the commission of the offense, a Class III felony was punishable by 1 to 20 years’
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imprisonment and/or a $25,000 fine. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014). Harder’s
sentence of 19 to 20 years’ imprisonment is within the statutory sentencing range.
Further, the record shows that the district court reviewed the presentence investigation
report and considered the appropriate sentencing factors. Harder received a substantial benefit
from his plea agreement, he has an extensive criminal history including a prior conviction for third
degree sexual assault of a child, and he was rated as a high risk to reoffend. Based upon these
factors, the sentence imposed for his attempted child abuse conviction is not an abuse of discretion.
COUNT II: CHILD ABUSE
Harder was also convicted of child abuse, a Class IIIA felony, with the events occurring
after the L.B. 605 amendments. The court sentenced Harder to a determinate sentence of 3 years’
imprisonment on the child abuse conviction.
At the time of the commission of the offense, a Class IIIA felony was punishable by a
minimum of nothing and a maximum of 3 years’ imprisonment and 9 to 18 months’ post-release
supervision and/or a $10,000 fine. See Neb. Rev. Stat. § 28-105 (Supp. 2015). However, prior to
Harder’s sentencing, L.B. 1094 added Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016), which
provides:
Any sentence of imprisonment for a Class III, IIIA, or IV felony for an offense committed
on or after August 30, 2015, imposed consecutively or concurrently with (a) a sentence for
a Class III, IIIA, or IV felony for an offense committed prior to August 30, 2015, . . . the
court shall impose an indeterminate sentence within the applicable range in section 28-105
that does not include a period of post-release supervision, in accordance with the process
set forth in section 29-2204.
L.B. 1094’s amendments to § 29-2204.02 “apply to all committed offenders under sentence, on
parole, or on probation on or after April 20, 2016, and to all persons sentenced on and after such
date.” Neb. Rev. Stat. § 83-1,135.02 (Cum. Supp. 2016).
In the instant case, the district court was aware that it was sentencing Harder using the
post-L.B. 1094 sentencing guidelines. The court correctly refrained from imposing a period of
post-release supervision, but improperly sentenced Harder to a determinate sentence of 3 years’
imprisonment. The district court’s failure to impose an indeterminate sentence for this offense as
required by § 29-2204.02(4) was plain error and requires that we vacate this portion of Harder’s
sentence and remand to the district court for resentencing. See State v. Chacon, 296 Neb. 203, 894
N.W.2d 238 (2017) (finding plain error and remanding for resentencing where the district court’s
sentence did not comply with § 29-2204.02(4)).
CONCLUSION
In sum, we find that the district court did not abuse its discretion in sentencing Harder for
attempted child abuse and we affirm that conviction and sentence. However, in sentencing Harder
for child abuse, the district court erroneously sentenced him to a determinate rather than an
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indeterminate sentence. Therefore, we vacate that sentence and remand the cause for resentencing
on the child abuse conviction.
AFFIRMED IN PART, AND IN PART VACATED
AND REMANDED WITH DIRECTIONS.
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