State v. Roth

311 Neb. 1007

977 N.W.2d 221

STATE of Nebraska, appellee,

v.Derek J. ROTH, appellant.

No. S-21-792.

Supreme Court of Nebraska.

Filed July 15, 2022

Daniel S. Reeker, of Kendall, Crawford & Reeker, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.

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

Freudenberg, J.

INTRODUCTION

Following convictions of two counts of possession of a deadly weapon (not a firearm) by a prohibited person and one count of third degree domestic assault, the defendant was sentenced to 30 months’ probation. His probation was later revoked, and he was sentenced to 3 years’ imprisonment. In a direct appeal following the probation revocation, the defendant argues his total sentence of imprisonment was excessive. The State argues the district court plainly erred in failing to impose mandatory post-release supervision as part of the total sentence of imprisonment.

BACKGROUND

Derek J. Roth was originally charged in Dodge County with possession of a firearm by a prohibited person, a Class ID felony, in violation of Neb. Rev. Stat. § 28-1206(1)(a) and (3)(b) (Supp. 2017); two counts of possession of a deadly weapon (not a firearm) by a prohibited person, both Class III felonies, in violation of § 28-1206(1)(a) and (3)(a) ; third degree domestic assault, a Class I misdemeanor, in violation of Neb. Rev. Stat. § 28-323(1)(a) (Reissue 2016); three counts of carrying a concealed weapon, all Class I misdemeanors, in violation of Neb. Rev. Stat. § 28-1202 (Reissue 2016) ; and violation of a protection order, a Class I misdemeanor, in violation of Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018).

Pursuant to a plea agreement, Roth pled no contest to two counts of possession of a deadly weapon (not a firearm) by a prohibited person, both Class III felonies, and third degree domestic assault, a Class I misdemeanor.

The presentence investigation report (PSI) prepared for sentencing set forth the circumstances that led to Roth's original charges. On January 7, 2018, a Fremont, Nebraska, police officer was dispatched to a hotel in reference to a woman who called the 911 emergency dispatch service to report that she had been assaulted. The victim told the officer that she had been working concessions at a basketball game when Roth arrived and wanted her to leave. The victim willingly left with him. She stated that she thought "things would be okay," since she had a protection order against Roth out of Lancaster County.

They bought alcohol and went to a hotel room. The victim told the officer that Roth began accusing her of having relationships with others and that they got into an argument. Roth told the victim she was being too loud and then grabbed her face with his hands in an attempt to keep her quiet.

The victim reported she left the room and ran to the lobby, where she called the police. Roth came to the lobby and attempted to get her to leave with him in his vehicle. The victim stated she did not go with him because she was afraid. The victim reported that she knew he usually carried a firearm with him.

Upon arrival, the police observed the injuries to the victim's face. There was swelling under both eyes and on her cheek. The victim also showed the officer defensive bruising on both her forearms, which she advised was from the day before. The victim told the officer that there was a history of domestic violence between her and Roth, which has resulted in approximately 16 calls to the Lincoln, Nebraska, Police Department.

Roth was observed leaving the hotel parking lot in a vehicle as officers arrived.

Roth was ultimately stopped. A search of his vehicle revealed a set of brass knuckles, a serrated Buck knife, and a handgun.

Roth reported that he and the victim fought " ‘a lot’ " and that the police were called on several occasions. During one such altercation, Roth indicated that the victim stabbed him as evidenced by the scars on his arms. Roth reported that he felt anger, embarrassment, and disappointment when he thinks about this offense because he " ‘knew it was bound to happen and was mad that [he] went around her again.’ " He denied any domestic violence in other relationships he has had.

In the "LS/CMI" assessment, the PSI indicated that Roth is considered to be a high risk for reoffending. Roth scored in the very high risk range in the alcohol/drug problems category and in the high risk range in the family/marital and companions categories. Roth scored in the medium risk range in the criminal history and antisocial pattern categories, low risk range in the pro-criminal attitude/orientation and education/employment categories, and very low risk range in the leisure/recreation category.

The probation officer stated that although Roth expressed a willingness to change, he had a history of domestic violence, he had a history of not abiding by the terms of the protection order, and he minimized the seriousness of the offenses. The officer noted that Roth was willing to participate in probation and that he had never been on a term of probation in the past; however, the probation officer noted that the assessment suggested there is a high risk to the community for continued victimization.

Roth was sentenced to a 30-month term of intensive supervised probation on each of the three counts of the amended information, with the terms ordered to run concurrently. Conditions of Roth's probation included the requirement that Roth not violate the law.

During Roth's term of probation, he received numerous administrative sanctions, as well as two custodial sanctions for failing to comply with his order regarding alcohol/drug testing and consuming alcohol. Ultimately, the State filed a motion to revoke Roth's probation, alleging Roth violated the terms of his probation by violating the law. Roth had been arrested in Lancaster County, Nebraska, and was accused of committing the offenses of terroristic threats, use of a weapon to commit a felony, domestic assault, and criminal mischief. The probation officer stated that the alleged victim of these new charges was the same victim in the present matter. The victim disclosed to the police that Roth assaults her and threatens to kill her on a regular basis.

Later, the State amended the motion to revoke probation to add allegations due to Roth's again being arrested in Lancaster County for assault. At the arraignment hearing on the State's amended motion to revoke probation, upon Roth's admission, the court found him guilty of violating his probation order, directed the PSI be updated, and scheduled the matter for resentencing after the conclusion of his Lancaster County matters.

At sentencing, the court indicated that it had reviewed and considered the updated PSI which consisted of Roth's original PSI with an added cover letter that outlined the sanctions and charges that had occurred between the date the alleged probation violation was filed and the date on the cover letter. The cover letter pointed out the charges in Lancaster County that triggered the motion to revoke probation and the multiple sanctions he received. The letter also indicated that Roth had been deceitful about his residence by stating he had been living with his mother when he was actually living with the victim. Finally, the probation officer pointed out that Roth completed a domestic violence class in August 2020 and had maintained employment since the most recent administrative sanction, but his updated assessments showed very high scores in the pro-criminal attitude, antisocial patterns, and companions categories.

During his sentencing presentation, Roth's counsel informed the court that Roth had entered a plea agreement in the related Lancaster County case where he pled to two reduced charges of third degree domestic assault, both Class I misdemeanors, and was sentenced to 200 days in county jail.

The State asserted that Roth was already a high risk to reoffend when he was placed on probation and had minimized the seriousness of his actions. The State pointed out that Roth had been given an opportunity to have probation and that he reoffended against the same victim. Further, the State argued that the updated PSI scored Roth in the very high risk range in several categories. The State concluded that "due to the seriousness of this matter and this offender continues to re-offend again[st] the same victim ... the State believes a term of incarceration is necessary." The State asked the court to impose terms of imprisonment for each of the offenses, which could all run concurrent to one another but consecutive to the sentence imposed in the related Lancaster County matter.

Roth's counsel asked the court to simply terminate Roth's probation "unsatisfactorily" and allow him to be "essentially done with his case." It was pointed out that the violation of probation was 18 months prior with no additional violations since that time and that due to COVID-19, Roth's term of probation had been extended by 4 months beyond the original term. Defense counsel asserted Roth had successfully completed all the classes ordered during his time on probation. Defense counsel requested that if the court were to terminate probation and place Roth in a period of incarceration, the court impose a minimal time and allow it to run concurrent with the Lancaster County case he was currently serving. Roth told the court, "I'm just working toward[ ] bettering myself. And I want to get out, and see my nephew, and see my family, and learn my lesson, and keep doing what I have to do."

The court stated that Roth was given the privilege of probation and the opportunity to show he would abide by the law and "not, I repeat, not inflict further violence on women, this victim, or anyone else." He failed to do so, and "there is no excuse or justification for that." The court revoked Roth's probation and sentenced him to 3 years’ imprisonment on counts I and II and...