Nebraska § 29-2322 - Appeal of sentence by prosecutor; review; considerations.

§ 29-2322. Appeal of sentence by prosecutor; review; considerations.

If the appeal has been properly filed, as set forth in section 29-2321, the appellate court, upon a review of the record, shall determine whether the sentence imposed is excessively lenient, having regard for:

(1) The nature and circumstances of the offense;

(2) The history and characteristics of the defendant;

(3) The need for the sentence imposed:

(a) To afford adequate deterrence to criminal conduct;

(b) To protect the public from further crimes of the defendant;

(c) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and

(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and

(4) Any other matters appearing in the record which the appellate court deems pertinent.

1. Factors

2. Sentence found excessively lenient

3. Sentence not excessively lenient

1. Factors

When a judge has imposed sentences for several convictions at the same time, an appellate court generally considers the aggregate sentence in considering whether a sentence is excessively lenient. State v. McGovern, 311 Neb. 705, 974 N.W.2d 595 (2022).

When determining whether to impose probation, the trial court must consider the factors set forth in section 29-2260. On appeal, an appellate court must likewise consider section 29-2260 in determining whether probation may be imposed, whether reviewing a sentence for excessiveness pursuant to section 29-2308 or for leniency under this section. Pursuant to subsection (3)(c) of this section, although the seriousness of the crime may weigh in favor of the defendant, it does not, by itself, indicate that probation is inappropriate. State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).

Factors to be considered when the Supreme Court reviews an appeal by a prosecutor are set forth in this section. State v. Dobbins, 221 Neb. 778, 380 N.W.2d 640 (1986).

This section provides that an appellate court, upon a review of the record, shall determine whether a sentence imposed is excessively lenient, having regard for (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed (a) to afford adequate deterrence to criminal conduct; (b) to protect the public from further crimes of the defendant; (c) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (4) any other matters appearing in the record which the appellate court deems pertinent. State v. Hatt, 16 Neb. App. 397, 744 N.W.2d 493 (2008).

2. Sentence found excessively lenient

Sentence of probation for defendant who was convicted of first degree sexual assault of a child was excessively lenient. State v. Hoffman, 246 Neb. 265, 517 N.W.2d 618 (1994).

Following a review of standards set forth in this section, the Supreme Court found the sentence of 5 years' probation for an individual who was convicted of operating a motor vehicle while his license was suspended for life was excessively lenient and remanded the cause for resentencing to a term of imprisonment for 5 years. State v. Foral, 236 Neb. 597, 462 N.W.2d 626 (1990).

A sentence of probation for an individual who was convicted of possession of a deadly combination of illegal drugs with intent to deliver, who has a history of violating probation and disregarding the law, and who continues to deny his guilt is excessively lenient. State v. Winsley, 223 Neb. 788, 393 N.W.2d 723 (1986).

Based upon consideration of the facts in this case as they relate to the statutory factors to consider pursuant to this section, the sentence imposed upon the defendant by the sentencing court was excessively lenient. State v. Silva, 7 Neb. App. 480, 584 N.W.2d 665 (1998).

Concurrent 5-year terms of probation with 180 days in county jail plus restitution were excessively lenient sentences for defendant convicted of issuing a bad check and two counts of forgery, where defendant had numerous prior felony convictions. State v. Cotton, 2 Neb. App. 901, 519 N.W.2d 1 (1994).

A sentence of 60 days in county jail for one convicted of two counts of felony forgery, where defendant had an extensive criminal record and had failed to take further actions to cure her drug addiction, was excessively lenient. State v. Ummel, 1 Neb. App. 541, 500 N.W.2d 191 (1993).

3. Sentence not excessively lenient

A sentence of probation is not excessively lenient, even though the crimes were serious with an egregious set of facts, where the offender was convicted of a Class II felony for which the law prescribed no mandatory minimum sentence, the presentence investigation report showed he is at low risk to reoffend, and the psychological evaluation recognized he was around 14 years of age at the time of the offenses and has not subsequently engaged in any other known or reported forms of sexual misconduct. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).