State v. Horne

1

315 Neb. 766

State of Nebraska, appellee, v. Tristan T. Horne, appellant.

No. S-23-192

Supreme Court of Nebraska

January 19, 2024

1. Courts: Appeal and Error. A defendant's removal from a problemsolving court program is reviewed for an abuse of discretion.

2. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.

3. __ __. An abuse of discretion takes place when the sentencing court's reasons or ruling are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.

4. Trial: Appeal and Error. A party is normally required to object to a perceived error by a trial court in order to preserve that issue for appeal.

5. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity reputation, and fairness of the judicial process.

Appeal from the District Court for Sarpy County: Stefanie A Martinez, Judge.

Christopher J. Lathrop, Deputy Sarpy County Public Defender, and Savannah Kroll, Senior Certified Law Student, for appellant.

Michael T. Hilgers, Attorney General, and Teryn Blessin for appellee.

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

After pleading guilty to a charge of attempted possession of a firearm by a prohibited person, Tristan T. Horne was accepted into a problem-solving court program. On several occasions during Horne's participation in the program, the district court sanctioned Horne for his failure to comply with program requirements. Eventually, the State moved to remove Horne from the program due to additional failures to follow program requirements. Horne admitted to the alleged violations, and the district court removed Horne from the program. The district court then sentenced Horne to a term of imprisonment on the charge to which he had earlier pled guilty. Horne appeals, challenging his removal from the problem-solving court program, the fact that the district court did not order a presentence investigation before sentencing him, and the length of his sentence. We find no reversible error and therefore affirm.

BACKGROUND

Horne's Guilty Plea; Entry Into Wellness Court Program.

This case began when the State charged Horne with possession of a firearm by a prohibited person. The charges arose from an incident in which Horne appeared on a video holding a gun and making comments about killing himself.

Horne and the State later reached a plea agreement. Pursuant to the agreement, Horne pled guilty to an amended charge of attempted possession of a firearm by a prohibited person and the State recommended that Horne be admitted to "Wellness Court," a problem-solving court program administered by the district court. In such programs, sentencing is deferred following a guilty plea and the defendant instead participates in a program that includes treatment, supervision, and judicial oversight. See State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011). See, also, Neb. Rev. Stat. § 24-1302 (Reissue 2016) (amended by 2023 Neb. Laws, L.B. 50, effective September 2, 2023); Neb. Ct. R. § 6-1201 et seq. (rev. 2022). After successful completion of the program, participants are often permitted to withdraw their pleas and have their charges dismissed. See Shambley, supra. If, however, the participant is removed from the program or withdraws before successful completion, the conviction stands and the case proceeds to sentencing on that conviction. See id. The district court's wellness court program is designed to assist defendants with mental health diagnoses.

The district court accepted Horne's guilty plea. It then confirmed on the record that Horne had read and reviewed with his attorney a contract governing the terms of his participation in the wellness court program. The district court also confirmed that Horne agreed to adhere to the requirements of the contract and that he understood that a failure to do so could result in removal from the program. The district court additionally advised Horne that if he was removed from the program, he could be sentenced on the charge to which he had pled guilty. The district court accepted Horne into the wellness court program and released him on a signature bond. The full contract governing Horne's participation in the wellness court program is not included in the record on appeal.

In a journal entry and order memorializing the hearing at which Horne pled guilty and was accepted into the wellness court program, the district court stated that Horne had voluntarily, knowingly, and intelligently waived his right to a presentence investigation.

Wellness Court Program.

Horne began participating in the wellness court program shortly after the district court accepted him into the program in April 2021. As part of the wellness court program, Horne had frequent status hearings in the district court. During those hearings, Horne reported on his weekly schedule, his progress toward certain personal goals, and his meetings with probation officers and therapists. During several of those status hearings, the district court sanctioned Horne for violations of program requirements, including missed drug tests, missed Alcoholics Anonymous meetings, dishonesty with probation officers, and not completing community service hours ordered by the district court.

At one point during Horne's participation in the wellness court program, he admitted to "a relapse." To address the relapse, the district court ordered Horne to move into a structured living facility. When Horne failed to move into a structured living facility despite program staff notifying him of an opening, the district court ordered Horne to move into the facility or, if the space was no longer available, to report to the county jail for a 1-day jail sanction. The record indicates that Horne failed to report as ordered, and the district court ordered a jail sanction.

As a result of Horne's failure to follow directions of the district court, the district court eventually ordered Horne to remain in the county jail until a bed became available at a residential treatment facility. When a bed became available, Horne was released to the facility, but was ordered to immediately report to the county jail if he failed to successfully complete treatment. Horne left the treatment facility without successfully completing treatment and failed to report to jail. Horne later failed to appear at a status hearing, and the district court issued a warrant for his arrest. Horne was arrested and again placed in the county jail.

Horne was subsequently placed in another treatment facility and ordered to wear a GPS monitoring device at all times. After Horne was unsuccessfully discharged from this treatment facility, the State filed a motion in October 2022 seeking Horne's termination from the wellness court program. In the motion, the State alleged multiple violations of Horne's wellness court program contract. The motion alleged that Horne had failed to appear for a wellness court program hearing; that he had tested positive for marijuana while at his latest residential treatment facility, but denied using; that he had removed his GPS monitoring device; and that he had failed to report directly to the county jail as required after his unsuccessful discharge from the treatment facility. A warrant was again issued for Horne's arrest, and he was arrested.

Removal From Wellness Court Program and Sentencing.

At a hearing on the motion to terminate Horne from the wellness court program, Horne admitted to the allegations in the State's motion. After accepting Horne's admissions, the district court set another hearing for "disposition."

The district court began the subsequent hearing by asking Horne's counsel if there was "any legal reason why we can't proceed to disposition." Horne's counsel said there was no such reason. The district court then stated that "although a presentence investigation report was not completed," it would take judicial notice of the State's motion to remove Horne from the wellness court program and would receive as exhibits the affidavit of probable cause for Horne's initial arrest, as well as a document summarizing Horne's criminal history.

Horne's counsel, when given the opportunity to address the district court, acknowledged that Horne "attempted to participate" in the wellness court program but "did so with not a whole lot of success." He argued that Horne should be permitted to remain in the wellness court program or should be sentenced to a term of probation on the charge to which he pled.

The district court declined to allow Horne to remain in the wellness court program. On the charge to which Horne pled guilty, the district court sentenced him to 6 to 20 years' imprisonment with credit for time he had already served.

Horne timely appealed, and we moved the case to our docket.

ASSIGNMENTS OF ERROR

Horne assigns three errors. We have paraphrased those errors as follows: the district court erred by (1) removing him from the wellness court program, (2) sentencing him without first ordering a presentence investigation, and (3) imposing an excessive sentence.

STANDARD OF REVIEW

We have not previously addressed the standard of review that applies to a defendant's challenge to removal from a problem-solving court program. The Nebraska Court of Appeals has held that a defendant's removal from a problemsolving court program is reviewed for an abuse of discretion. See State v. Seaman, 28 Neb.App. 667, ...