State v. Gibson

302 Neb. 833

925 N.W.2d 678

STATE of Nebraska, Appellant,

v.Jason T. GIBSON, Appellee.

No. S-17-1272.

Supreme Court of Nebraska.

Filed April 12, 2019

Phil Kleine, Deputy Sarpy County Attorney, for appellant.

Donald L. Schense, of Law Office of Donald L. Schense, for appellee.

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

Freudenberg, J.

NATURE OF CASE

The defendant was convicted of attempted sexual assault of a child in violation of Neb. Rev. Stat. § 28-319.01(1)(b) (Reissue 2016). The presentence investigation report (PSI) indicates that the defendant believed the child to be 18 years old. The defendant has no criminal record. The question presented in this appeal is whether the district court abused its discretion in sentencing the defendant to 5 years’ probation with 180 days of jail time as a condition of probation. The State asserts that the sentence was excessively lenient and involved inappropriate consideration of an irrelevant factor. The Nebraska Court of Appeals, in a split decision, agreed. We granted further review. We reverse the Court of Appeals’ decision and remand the matter with directions to affirm the sentence of the district court.

BACKGROUND

Jason T. Gibson was initially charged with first degree sexual assault of a child in violation of § 28-319.01(1)(b), a Class IB felony which is punishable by 20 years’ to life imprisonment, with a mandatory minimum of 15 years’ imprisonment. In exchange for his plea of no contest, the State amended the charge to attempted first degree sexual assault of a child, in violation of § 28-319.01(1)(b) and Neb. Rev. Stat. § 28-201 (Cum. Supp. 2018), a Class II felony. A Class II felony is punishable by 1 to 50 years’ imprisonment, but no mandatory minimum is required. There was no agreement between the parties regarding their recommendations to the court as to sentencing.

A violation of § 28-319.01(1)(b) occurs when an actor 25 years of age or older subjects another person who is at least 12 years of age but less than 16 years of age to sexual penetration. As the factual basis for the crime, the State described that another person, DeArch Stubblefield, was prostituting out the victim, E.L., who was 15 years old. Between December 1, 2016, and January 31, 2017, Gibson picked up E.L. and Stubblefield and drove them to his house, where Gibson engaged in the sexual penetration of E.L. Money was given to Stubblefield by Gibson after the sexual intercourse.

According to the PSI, Stubblefield, who was 18 years old, attended the same high school as E.L. He and E.L. were engaged in a sexual relationship for approximately 6 months when Stubblefield began seeking sexual encounters through "Craigslist." Without consulting with E.L., Stubblefield decided to post on Craigslist that he and E.L. were looking for someone to have a "threesome with." Stubblefield eventually told E.L. that he had arranged a sexual encounter for the two of them and asked her to participate. E.L. agreed, not knowing exactly what was going to happen.

This began a series of three sexual encounters with three different men, arranged by Stubblefield. During these encounters, Stubblefield directed E.L.’s actions and the men sexually penetrated E.L. Stubblefield also participated in the sexual activities to varying degrees.

Gibson was one of the men who responded to Stubblefield’s Craigslist posting. Gibson picked up E.L. and Stubblefield and drove them to his house, where the sexual penetration occurred. Gibson described that he believed that both E.L. and Stubblefield were 18 years old. According to Gibson and Stubblefield, the Craigslist posting stated that E.L. and Stubblefield were both 18 years old. Also, according to Gibson, E.L. and Stubblefield told him that E.L. was 18 years old.

All communication leading up to the day of the sexual contact was between Gibson and Stubblefield. Gibson told Stubblefield that he did not wish to engage in a threesome and was only interested in the young woman. Stubblefield was in the room during the sexual penetration of E.L. by Gibson. There were conflicting reports as to Stubblefield’s involvement while in the room.

After the sexual contact and before Gibson took E.L. and Stubblefield home, Stubblefield asked Gibson for $ 40. Stubblefield claimed he needed the money either to fix a tire on his car or to buy gasoline. Gibson gave the money to Stubblefield, who later split the money with E.L.

The PSI showed that Gibson has no criminal record. A search of his electronic devices confiscated as part of the investigation failed to reveal any involvement in activities similar to those for which he was convicted, or any other crime. Gibson admitted to law enforcement that he had previously engaged in at least one other sexual encounter and had chatted with people through other websites, but alleged that these activities were between consenting adults and not for money.

Gibson has served for 16 years as a linguist in the U.S. Air Force with consistently exemplary performance reviews and numerous awards and decorations. Over 30 letters were submitted to the district court attesting to Gibson’s good character and reputation. These letters described Gibson as a person of integrity and character who consistently puts others before himself. He was described as truthful, honest, dedicated, honorable, hardworking, good natured, and mild mannered. Clinical psychological evaluations concluded that Gibson was not classified as a pedophile. He participated in several psychological assessments that concluded Gibson was at a low overall risk to reoffend.

The PSI indicated that Gibson was upfront and honest with law enforcement from the beginning of the investigation. Gibson immediately accepted responsibility for his actions. Further, he expressed to the court that he was extremely remorseful for what E.L. and her family must be going through.

The State argued for a period of incarceration, while defense counsel sought probation with no incarceration. Before pronouncing its sentence, the district court noted the severity of the crimes that had been committed against E.L. The court said that it was a case that "is extremely difficult for the Court, for the victim, for her family, and for the community." The court continued:

There is no sentence that I’ll be able to give to you that will make [E.L.] whole again. I can hope that the system does what it is designed to do, and in my reading of the presentence investigation report, it indicates to me that this ... Stubblefield has, in large part, the majority of the responsibility, from the materials I’ve received. And my hope is that he — [E.L.] is given some sort of justice in that sentence, most significantly.

Turning to mitigating factors, the district court noted that Gibson had demonstrated an appreciation for the seriousness of his actions and had accepted responsibility for the crime he committed.

The court pronounced that Gibson would have to serve a term of incarceration at the county jail for 180 days and that "[t]here will be a term of probation for five years to be served upon completion of that jail time." The subsequent written order of probation included a condition that Gibson serve 180 days in the Sarpy County jail, and an order of commitment followed. We agree with the Court of Appeals’ majority opinion that this written sentence imposed probation in lieu of incarceration and imposed 180 days’ jail time as a valid condition of probation under the authority conferred by Neb. Rev. Stat. § 29-2260 (Reissue 2016). It was not a sentence to incarceration below the minimum set forth in Neb. Rev. Stat. § 28-105 (Reissue 2016). Neither party challenges that the written order controls and sets forth a statutorily valid sentence. To the extent that the district court appeared to pronounce at the sentencing hearing a period of incarceration, as opposed to jail time as a condition of probation, we agree that the written order controlled over the invalid orally pronounced sentence.¹

Besides 180 days in jail, the order of probation subjected Gibson to numerous other general and individualized conditions. Gibson was also subject to the Sex Offender Registration Act, Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2016).

The State appealed Gibson’s sentence under Neb. Rev. Stat. § 29-2321 (Reissue 2016) as excessively lenient. The Court of Appeals, in a split decision, held that the court’s sentence was excessively lenient.² The Court of Appeals reasoned that although the record demonstrated an unlikelihood that Gibson would reoffend, the district court’s decision to impose probation in lieu of incarceration under § 29-2260(2) depreciated the seriousness of the crime. Furthermore, the Court of Appeals found that the district court had based its sentencing decision in part on the impermissible and irrelevant factors of Stubblefield’s culpability and probable sentence for his involvement in the crime.

We granted Gibson’s petition for further review.

ASSIGNMENTS OF ERROR

In his brief in support of further review, Gibson asserts that the Court of Appeals erred in (1) finding that the district court abused its discretion by imposing an excessively lenient sentence, (2) finding that the district court considered an irrelevant factor when imposing its sentence, and (3) vacating the district court’s sentence and remanding the cause to the district court with directions that a different district court judge impose a greater sentence.

STANDARD OF REVIEW

Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court’s discretion.³

ANALYSIS

When the State appeals from a sentence, contending that it is excessively lenient, this court reviews the record for an abuse of discretion, and a grant of probation will not be disturbed unless there has...