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State v. Van11/12/2004
e do not reach those issues in this direct appeal.
5. Sentencing
(a) Assignment of Error
In his sixth assignment of error, Van assigns that the district court erred "in failing to impose concurrent sentences . . . and imposing an excessive sentence, which constituted an abuse of its discretion."
(b) Standard of Review
[15-17] In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Roeder, 262 Neb. 951, 636 N.W.2d 870 (2001); State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001). Where a sentence imposed within statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying these factors as well as any applicable legal principles in determining the sentence to be imposed. Id. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. Id.
(c) Disposition
All of Van's sentences were within statutory limits. First degree sexual assault is a Class II felony, which carries a minimum prison sentence of 1 year and a maximum of 50 years. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2002) and § 28-319(2). Van was sentenced to 7 to 10 years in prison on this charge. First degree assault is a Class III felony and carries a minimum prison sentence of 1 year and a maximum of 20 years. §§ 28-105 and 28-308(2). Van was sentenced to 5 to 8 years in prison for first degree assault. Second degree assault and false imprisonment are Class IIIA felonies which carry no minimum sentence and a maximum prison sentence of 5 years. §§ 28-105, 28-309, and 28-314. Van received prison sentences of 2 to 5 years for second degree assault and 1 to 3 years for false imprisonment. Terroristic threats is a Class IV felony which carries no minimum sentence and a maximum sentence of 5 years in prison. §§ 28-105 and 28-311.01(2). Van received a prison sentence of 1 to 3 years for terroristic threats. The sentences were ordered to be served consecutively.
In arguing that these sentences were excessive, Van contends that all of the charged offenses arose from a single "transaction" which he describes as a "consensual and prearranged BDSM relationship" initiated by J.G.C. Brief for appellant at 31. This argument ignores J.G.C.'s sworn testimony that at the time of the charged offenses, he had withdrawn any consent previously communicated to Van. Nor do we find merit in Van's argument that his sentences are excessive when compared to the sentence received by Marshall. The mere fact that a defendant's sentence differs from that imposed on a coperpetrator does not in and of itself make the defendant's sentence an abuse of discretion, as the court must consider each defendant's life, character, and previous conduct in imposing sentence. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
Based upon our review of the record, including the presentence investigation report reflecting Van's prior history of sexual offenses, we conclude that the district court did not abuse its discretion in sentencing Van to consecutive terms of imprisonment as noted above.
6. Denial of Motion for New Trial
(a) Assignments of Error
Van's remaining assignments of error pertain to the denial of his motion for new trial. In h
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