State v. Becker

304 Neb. 693

936 N.W.2d 505

STATE of Nebraska, appellee,

v.Timothy L. BECKER, appellant.

No. S-19-008.

Supreme Court of Nebraska.

Filed December 20, 2019

Bernard J. Straetker, Scotts Bluff County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Timothy L. Becker, appellant, was convicted in the county court for Scotts Bluff County of 21 misdemeanor counts of violating a protection order and sentenced to county jail for 180 days on each count, to be served consecutively. On appeal to the district court, Becker claimed that the sentences imposed were (1) excessive, (2) disproportionate in violation of the Eighth Amendment, and (3) invalid because when the county court orally pronounced his sentences in open court, it failed to state where the sentences were to be served. The district court rejected each of these claims and affirmed Becker’s convictions and sentences. On appeal to this court, Becker claims the district court erred when it rejected each of his contentions regarding his sentences. Because we find no merit to Becker’s claims of error, we affirm the order of the district court, which affirmed Becker’s convictions and sentences.

STATEMENT OF FACTS

On May 29, 2018, the State charged Becker in the Scotts Bluff County Court with 21 counts of violating a protection order under Neb. Rev. Stat. § 42-924(4) (Cum. Supp. 2018). Each count involved a violation of the same protection order and the same victim, but each count was alleged to have occurred on a different date from May 3 through May 23, 2018. Each count was charged as a second offense based on a prior conviction for violation of a protection order involving the same victim. The complaint alleged that the prior offense had occurred on January 3, 2018, and that Becker had been convicted of the prior offense on May 3.

Pursuant to a plea agreement, the State reduced each of the charges to a first offense and Becker pled no contest to all 21 counts on June 5, 2018. Under § 42-924(4), a first offense of violating a protection order is a Class I misdemeanor, whereas a second or subsequent offense is a Class IV felony.

In its factual basis for the pleas, the State asserted that a protection order had been entered against Becker on October 19, 2017, and had remained in effect since issued and that the protection order prohibited Becker from, inter alia, telephoning or otherwise communicating with the victim. The State further asserted that on the dates alleged, Becker was incarcerated in the Scotts Bluff County jail and that jail records showed that Becker had telephoned the victim’s number on each of the charged dates, "often multiple times a day." The State asserted that in the timeframe alleged, Becker had made over 300 calls to the victim’s number and that "over 150 of those were completed phone calls."

At the July 31, 2018, sentencing hearing, the county court received evidence, including the victim’s impact statement. After hearing arguments from the State and from Becker, the county court sentenced Becker to imprisonment for 180 days for each of the 21 convictions and ordered that the sentences be served consecutively to one another. In connection with the imposition of sentences, the county court stated that it had considered the victim impact statement, Becker’s criminal history, the nature of the offenses, public safety, and the need for punishment. The county court further stated that it considered Becker’s comments at the sentencing hearing, which "very much went to blame other people rather than to take personal responsibility and make any promises not to do that in the future."

Before pronouncing the sentence, the county court had a discussion with counsel regarding where Becker would serve his sentences "if he is given over a year sentence." In that discussion, the court made reference to Neb. Rev. Stat. § 28-106(2) (Reissue 2016), which provides in part:

Sentences of imprisonment in misdemeanor cases shall be served in the county jail, except that such sentences may be served in institutions under the jurisdiction of the Department of Correctional Services if the sentence is to be served concurrently or consecutively with a term for conviction of a felony and the combined sentences total a term of one year or more.

At the end of the discussion, the court stated that it was "going to issue the sentence, and then I am going to look at that [location issue] before I issue the commitment order showing where the commitment will take place.... [H]opefully I can still get that figured out yet today, but, if not, first thing in the morning." See Neb. Rev. Stat. § 29-2403 (Reissue 2016) (providing for warrant of commitment). While counsel and Becker were present in the courtroom, the court pronounced a sentence of 180 days for each count. The written sentencing order, signed and dated by the county court on July 31, 2018, stated that Becker was "sentenced to the Scotts Bluff County Jail" for consecutive sentences of 180 days for each of the 21 misdemeanor convictions, for a total of 3,780 days. The sentencing order was filed on August 1.

Becker appealed his convictions and sentences to the district court. After briefing and argument, the district court filed an order which affirmed the county court’s judgment. The district court stated that Becker argued that (1) the sentences imposed by the county court were excessive, (2) the sentences violated the Eighth Amendment because they were disproportionate to the crimes committed, and (3) the sentences were invalid because the county court did not announce in open court where Becker would serve his sentences. Regarding excessive sentences, the district court determined that the sentences were within statutory limits, were supported by competent evidence, and did not constitute an abuse of discretion. Regarding disproportionate sentencing, the district court again noted that the sentences were within statutory limits and that Becker’s criminal history included a violation of the same protection order. The district court also rejected Becker’s argument that the sentences were disproportionate because they would be served in county jail "with little services offered and with little opportunity to be outside." The district court noted that the Legislature provided in § 28-106 that sentences for misdemeanors were to be served in county jails unless served concurrently with or consecutively to a sentence for a felony. Based on § 28-106, the district court determined that because the sentences in this case were for misdemeanors and there was no felony involved, the statutorily required location for the sentences was the county jail. Finally, regarding the failure to announce in open court the location where the sentences would be served, the district court noted that the county court had engaged in a discussion of the issue with counsel and that Becker did not object to the county court’s statement that it would research the location issue and issue a commitment order identifying the location following the hearing. The district court noted that the county court sentencing order filed the day after the sentencing hearing provided that the sentences would be served in the county jail. The district court concluded that there was no error regarding sentencing and affirmed.

Becker appeals the district court’s order which affirmed his convictions and sentences.

ASSIGNMENTS OF ERROR

Becker generally claims that the district court erred when it affirmed his convictions and sentences. Becker claims, restated and reordered, that (1) there was plain error and the sentences were not valid, because he was not present in court "when the commitment portion of his sentences [was] imposed"; (2) the sentences imposed violated the Eighth Amendment because they were disproportionate to his criminal history and the severity of the crimes; and (3) the sentences imposed were excessive and an abuse of discretion.

STANDARDS OF REVIEW

In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. State v. Hatfield, 304 Neb. 66, 933 N.W.2d 78 (2019). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.

Whether a sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment presents a question of law. State v. Jones , 297 Neb. 557, 900 N.W.2d 757 (2017). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. Id.

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019). An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

ANALYSIS

Each of Becker’s three assignments of error relates to the propriety of his sentences. Thus, we make some initial comments which relate to our analysis of each assignment of error. We initially note that Becker pled no contest to and was convicted of 21 counts of first offense violation of a protection order. Under § 42-924(4), a first offense of violating a protection order is a Class I misdemeanor. The sentencing range for a Class I misdemeanor is found in § 28-106, which provides no minimum and a maximum of 1 year’s imprisonment, a $1,000 fine, or...