State v. Koch

STATE OF NEBRASKA, APPELLEE, v. EDWARD D. KOCH, APPELLANT.

No. A-15-959.

NEBRASKA COURT OF APPEALS

May 24, 2016

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeal from the District Court for Cass County: JEFFREY J. FUNKE, Judge. Affirmed.

Julie E. Bear, Deputy Cass County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and George R. Love for appellee.

MOORE, Chief Judge, and INBODY and BISHOP, Judges.

BISHOP, Judge.

Edward D. Koch pled no contest to two counts of manslaughter, Neb. Rev. Stat. § 28-305 (Reissue 2008), arising out of the deaths of Matthew Kirchhoff and Emily Widger. The district court for Cass County imposed consecutive sentences of 15 to 20 years' imprisonment on the convictions. Koch appeals, challenging his sentences on a number of grounds. We affirm.

BACKGROUND

On December 22, 2014, Koch was charged by information in the district court with two counts of manslaughter, a Class III felony. § 28-305(b). The first count alleged that on September 21, 2014, in Cass County, Nebraska, Koch unintentionally caused the death of Matthew while in the commission of an unlawful act, to-wit: driving under the influence, Neb. Rev. Stat. § 60-6,196 (Reissue 2010); driving too fast for conditions, Neb. Rev. Stat. § 60-6,185 (Reissue 2010); willful reckless driving, Neb. Rev. Stat. § 60-6,214 (Reissue 2010); reckless driving, Neb. Rev. Stat. § 60-6,213 (Reissue 2010); careless driving, Neb. Rev. Stat. § 60-6,212 (Reissue 2010); or third degree assault, Neb. Rev. Stat. § 28-310 (Reissue 2008). The second count alleged Koch caused the death of Emily in the same manner.

On July 20, 2015, while represented by counsel, Koch pled no contest to both counts. Prior to accepting Koch's pleas, the court inquired into his competency, advised him of the nature of the charges against him and the potential punishments, and advised him of the rights he would waive if he pleaded guilty or no contest. The court heard the following factual basis for the pleas:

[O]n or about September 21 of 2014, Matthew Kirchhoff and Emily F. Widger, along with their dog Bear, a chocolate lab that they considered very much a part of their family, were traveling west on Highway 34 at approximately mile marker 347 in Cass County, Nebraska, when they were rear-ended by a vehicle driven by Edward D. Koch.

The collision occurred very near sunset when the sun was low in the sky. During the course of the subsequent investigation Dr. Aaron Linde determined within a reasonable degree of medical certainty that the cause of death of both Matthew and Emily was consistent with the injuries suffered by the collision of Mr. Koch's vehicle into the back of the victims' vehicle. The collision was sufficient to cause the rear of the victims' vehicle to be compacted forward halfway to the front of the vehicle.

In speaking with Mr. Koch at the scene, law enforcement officers were told by Mr. Koch that he was travelling approximately 92 to 94 miles an hour when he hit the victims' vehicle. The speed limit at that location is 60 miles an hour. When asked if he had been drinking alcohol, Mr. Koch initially said no, but later reported, when confronted with the smell on [sic] alcohol on his person, that he had consumed two drinks earlier. PBT revealed blood alcohol level of .144.

When officers read [the] post-arrest chemical test advisement form to the defendant, during the course of that process, Mr. Koch stated that at 10:00 that he had consumed one screwdriver, an alcoholic beverage at brunch prior to leaving Illinois. Mr. Koch also stated that the night prior he had been drinking heavily and he admitted to having used marijuana two days earlier. He also commented that the only thing that they would find in his system was alcohol and marijuana.

During the -- also during the transport to the Cass County Jail, the defendant engaged the deputy that was transporting him, asking why the victims' vehicle was parked in the middle of the roadway. The deputy indicated that to his knowledge the vehicle was not stopped but slowed down due to driving into the bright sun. Defendant indicated that he, too, could see nothing until he was right up on them due to the sun being so bright. The defendant then said -- asked the deputy if they were pulling back onto the road. The subsequent investigation of the witnesses at the scene indicated clearly that that was not the case, that both vehicles were travelling westbound on Highway 34. The accident reconstruction verified that. The accident reconstruction also verified that sun glare was a factor and that it would have required a reduction of speed at the time of the accident. The reconstruction also confirmed the defendant's speed estimations by verifying that at the time of the collision it was their opinion within a reasonable degree of scientific certainty that the speed of Mr. Koch's vehicle was 89 miles an hour.

Subsequent tests detected THC in the defendant's urine and alcohol at .32 [sic] grams per 100 milliliters in the blood. And then there was also a subsequent test by -- or an additional test that was performed by the hospital which showed a content of 192 milligrams per decaliter of blood as determined by the hospital.

While inventorying Mr. Koch's vehicle, officers found a small amount of marijuana and two glass pipes with burnt residue in their bowls which was confirmatory of his statements that he had consumed.

The court found that the factual basis was sufficient and that Koch's pleas were knowing, intelligent, and voluntary. The court entered convictions on both counts.

At the sentencing hearing on September 21, 2015, the court received into evidence the presentence investigation report (PSR), which was over 430 pages long. The PSR indicated that at the time of the incident, Koch was 25 years old, had a high school education, and worked as a systems administrator for a bank in Quincy, Illinois, where he resided. When the incident occurred, Koch was driving from Quincy to Lincoln, Nebraska, for a business trip. The bank terminated him shortly thereafter, and Koch subsequently became self-employed as an information technology consultant. The PSR contained a letter from a technology company in Quincy expressing a willingness to offer Koch a job pending the outcome of his criminal charges.

The PSR further indicated that Koch was unmarried and had no children; he resided in Quincy with his girlfriend and grandmother. His criminal history included one conviction in April 2007 for urinating in public in Phoenix, Arizona, for which he received a fine. Koch had been charged with possession of marijuana and drug paraphernalia in February 2007 in Phoenix, but the charges were dismissed in October of that year.

The PSR documented Koch's efforts following the incident to treat his alcohol abuse and a previously undiagnosed mental illness. It indicated Koch had experienced auditory and visual hallucinations since age 16 or 17 and that following the incident, he was diagnosed with "Schizoaffective Disorder, Bipolar Type," as well as anxiety and depression. Koch's treatment efforts included two hospitalizations totaling approximately 7 days, outpatient treatment with a counselor and psychiatrist, medication management, and participation in Alcoholics' Anonymous (AA). The PSR indicated Koch had not consumed alcohol or drugs since the incident. It also included Koch's written statement and approximately a dozen letters of support from family and friends.

The PSR contained over 90 letters and victim impact statements from family and friends of Matthew and Emily. The letters revealed that Matthew, age 24, had served in the United States Army for 4 years and completed a tour of duty in Afghanistan. At the time of his death, he was an active member of the Army Reserve in Lincoln, Nebraska, and was attending college. Emily, age 22, was also a college student, worked full-time, and lived in Lincoln with Matthew. Matthew and Emily had plans to become engaged and had started a wedding gift registry and selected a wedding date.

At the sentencing hearing, Koch's counsel offered one addition to the PSR, an update regarding Koch's treatment, which the court incorporated into the PSR. Otherwise, Koch made no objections or corrections to the PSR.

Also at the sentencing hearing, the court heard statements from Matthew's mother and Emily's mother and sister. Emily's sister sang two portions of her statement. Koch did not object to any part of the statements from the three women.

The court also heard a statement from Koch. He expressed his remorse and explained his efforts to address his alcohol abuse and mental illness, as well as his progress in treatment. He indicated that on the day of the crash, he was "in a full-blown psychotic episode" during which "[r]isky behavior and careless decisions were at an all-time high." He urged "that this accident was not a product of [his] morals, [his] character or [his] heart, but a product of [his] disease." Koch was "stable and in recovery" and desired to help other addicts and mentally ill persons.

At the conclusion of the sentencing hearing, the court imposed consecutive sentences of 15 to 20 years' imprisonment for the two manslaughter convictions. The court explained its decision:

As is evident today, this case is extremely difficult for all the parties involved. First, we have the death of two innocent victims and their beloved dog. Second, we have the impact their deaths have had on their families and friends. And, third, this court has the difficult task of determining an appropriate sentence. However, any sentence this court imposes will not provide true justice for these victims.

Pursuant to Nebraska law, courts must take into consideration several considerations: That being rehabilitation of the offender, the safety of the public, and

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