State v. Johnson

1

State of Nebraska, appellee, v. Shawn W. Johnson, Jr., appellant

No. A-24-017

Court of Appeals of Nebraska

June 25, 2024

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).

Appeal from the District Court for Lancaster County: JODI L. NELSON Judge.

Kristi J. Egger, Lancaster County Public Defender, and John C Jorgensen for appellant.

Michael T. Hilgers, Attorney General, and P. Christian Adamski for appellee.

MOORE ARTERBURN, and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH, JUDGE.

INTRODUCTION

Shawn W. Johnson, Jr. appeals from his plea-based conviction of third degree domestic assault with a prior conviction, a Class IIIA felony. He contends that the district court abused its discretion by imposing an excessive sentence and by including a provision in the post-release supervision order preventing him from all forms of contact with the victim. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

On July 8, 2023, the victim, who had been in an intimate dating relationship with Johnson since April, attempted to break up with him. During the conversation, which occurred at Johnson's home, the parties argued, after which Johnson "bit [the victim] on her right hand and hurt her lip." After this altercation, the victim drove her car to her residence, with Johnson following in his vehicle. After the victim pulled into her garage, Johnson blocked her in with his vehicle so she could not leave. The victim locked herself in her car, but Johnson was able to pull down the front driver's side window and unlock her car. With the victim's car unlocked, Johnson began choking the victim with both hands to the point that she was unable to breathe. As the victim attempted to get away, Johnson grabbed her and put her in a headlock. As the victim was screaming for help, officers arrived.

When officers arrived, they observed Johnson attempting to pull the victim into a garage. The victim was calling for help and screaming for Johnson to let her go. Officers instructed Johnson, who "was actively pulling [the victim's] arm and upper body," to release the victim. After physically separating the parties, the officers noted "rub marks" on the victim's neck, what appeared to be a bite mark on her right hand, and that her voice was raspy. The victim informed officers that she was in fear and worried for her safety. Johnson was arrested and initially charged with assault by strangulation or suffocation with a prior conviction, a Class IIA felony, and third degree domestic assault with a prior conviction, a Class IIIA felony.

Pursuant to a plea agreement, Johnson agreed to plead no contest to third degree domestic assault with a prior conviction. The State dismissed the other charge and provided a factual basis including the facts as previously set forth.

At the sentencing hearing, the district court stated that it had reviewed the presentence investigation report (PSR). The court noted Johnson's criminal history including prior convictions for domestic violence and that

This case . . . comes on the heels of [previous charges for domestic assault, tampering, and violation of a protection order,] and also, while [Johnson] was on post-release supervision, which is certainly notable because the first term and condition of post-release supervision is that he not violate any laws or engage in acts injurious to others, which is exactly what he did in this particular case.

The court further stated:

This is really concerning behavior, Mr. Johnson. You obviously didn't get the hint when you engaged in this kind of behavior with [a previous victim] and ended up in prison as a result of it and placed on post-release supervision with certain terms and conditions, which certainly included that you not continue to engage in this kind of behavior, but you have.

It is impossible for me to find that you are a good candidate for probation when you have demonstrated that while on an order of, essentially, supervision that you will violate that order regardless of the terms and conditions of that.

The court then found that imprisonment was necessary for the protection of the public, that there was a substantial likelihood that during a period of probation that Johnson would engage in additional criminal conduct, and a lesser sentence would depreciate the serious nature of the offense and promote disrespect for the law. The court sentenced Johnson to 3 years' imprisonment followed by 18 months of post-release supervision. Johnson received credit for 159 days previously served. The order regarding Johnson's post-release supervision included a provision prohibiting contact with the victim. Johnson's attorney objected to the no-contact provision stating:

That has not been part of the underlying case up to this point.

[Johnson and the victim] have had contact while the case has been pending. As you noted, . . . they would be permitted to have contact during the course of execution of him completing the sentence.

And so then it doesn't make much sense for them to then suddenly not be able to have contact while out on post-release.

[The victim is] not asking for there to be . . . no contact. There's been no other demonstration or ongoing care or concern that she . . . [is] in danger.

So I would ask the Court to reconsider the no[-]contact order as part of the post-release conditions.

The court overruled the request stating that it had "considered all of those things in imposing that condition." Johnson has timely appealed to this court and is represented by the same counsel that represented him during his plea and sentencing.

ASSIGNMENTS OF ERROR

Johnson contends that the district court abused its discretion by (1) imposing an excessive sentence and (2) including a provision in the post-release supervision order preventing him from all forms of contact with the victim.

STANDARD OF REVIEW

A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. State v. Alkazahy, 314 Neb. 406, 990 N.W.2d 740 (2023).

It is within the discretion of the trial court whether to impose probation or incarceration, and an appellate court will uphold the court's decision denying probation absent an abuse of discretion. State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013); State v. Montoya, 29 Neb.App. 563, 957 N.W.2d 190 (2021).

Whether a condition of probation imposed by the sentencing court is authorized by statute is a question of law. State v. Rieger, 286 Neb. 788, 839 N.W.2d 282 (2013).

ANALYSIS EXCESSIVE SENTENCE

Johnson first assigns the district court abused its discretion in imposing an excessive sentence. Specifically, Johnson argues that the district court failed to account for his likelihood of rehabilitation through probation, the nature of the offense, his strong support network and family relationships his prior success in probation, his remorse for the crime and acceptance of responsibility, and his motivation "to take concrete steps in preventing any future incidents." Brief for appellant at 11. He further contends that the offense "did not involve serious violence." Id. at 13.

Johnson was convicted of third degree domestic assault with a prior conviction, which is a Class IIIA felony. See Neb. Rev. Stat. § 28-323 (Reissue 2016). A Class IIIA felony carries a minimum term of no imprisonment and a maximum term of 3 years' imprisonment followed by 9 to 18 months of post-release supervision. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022).

Johnson was sentenced to the maximum of 3 years' imprisonment followed by 18 months of post-release supervision; thus, his sentence falls within the statutory guidelines.

When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering well-established factors and any applicable legal principles. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the violence involved in the commission of the crime. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. Id.

The PSR indicates that Johnson was 32 at the time of sentencing, had obtained a GED, and had been studying to become an electrician. Johnson was single with one dependent. Johnson's criminal history includes convictions for third degree domestic assault, third degree domestic assault with a prior conviction, strangulation, violating a protection order, obstructing a peace officer, theft by receiving stolen property ($501-$1,499), driving under the influence, refusal to submit to a breath test, and driving under suspension. Both the level of service/case management inventory (LS/CMI) and the domestic violence matrix assessed Johnson as having a high risk of reoffending. The PSR included the following comments by the investigating probation officer:

[Johnson's] criminal history and self-report reflects that he has engaged in early and diverse antisocial behavior (documented and self-reported problems of adjustment during adolescence, official record of violence/assault, history of escape or

...