CASE NO IN THE COURT OF APPEALS OF THE STATE OF NEBRASKA. THE STATE OF NEBRASKA, Plaintiff-Appellee, -vs- BENJAMIN PAEZ, Defendant-Appellant.

Transcription

1 CASE NO IN THE COURT OF APPEALS OF THE STATE OF NEBRASKA THE STATE OF NEBRASKA, Plaintiff-Appellee, -vs- BENJAMIN PAEZ, Defendant-Appellant. APPEAL FROM THE DISTRICT COURT OF SCOTTS BLUFF COUNTY, NEBRASKA Honorable Robert O. Hippe, District Judge BRIEF OF APPELLANT BYRON M. JOHNSON # SCOTTS BLUFF COUNTY PUBLIC DEFENDER & W. E. MADELUNG # DEPUTY PUBLIC DEFENDER TH STREET GERING, NEBRASKA (308) ATTORNEYS FOR APPELLANT

2 TABLE OF CONTENTS STATEMENT OF THE CASE 1-2 ASSIGNMENT OF ERROR 2 PROPOSITIONS OF LAW 2-4 STATEMENT OF FACTS 4-5 ARGUMENT.. ",, " 5 THE SENTENCE IMPOSED UPON THE DEFENDANT, ALTHOUGH WITHIN THE STATUTORY LIMITS WAS NEVERTHELESS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION BY THE TRIAL COURT 5-8 CONCLUSION 9 PROOF OF SERVICE 10 CASES CITED State v. Jones, 232 Neb. 576, 441 N.W.2d 605 (1989)... 2,3,6 State v. Komar, 213 Neb. 376, 329 N.W.2d 190 (1983)... 3,8 State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982)... 3,6 State v. Masur, 230 Neb. 620, 432 N.W.2d 815 (1988)... 3,5 State v. Moore, 198 Neb. 317, 252 N.W.2d 617 (1977)... 2,5 State v. Richter, 220 Neb. 551, 371 N.W.2d 125 (1985)... 2,3,5,6 State v. Swillie, 218 Neb. 551, 357 N.W.2d 212 (1984)... 2,3,6 o?tate v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988)...3,4,8 " State v. True, 236 Neb. 274, 460 N.W.2d 668 (1990)...2,3,6 STATUTE CITED Neb. Rev. Stat. Section (1995) 3,8 i

3 STATEMENT OF THE CASE 1. Nature of the case. This is a criminal case prosecuted upon an information filed in the District Court for Scotts Bluff County! Nebraska. Mr. Paez was charged with intentionally discharging a firearm at an inhabited dwelling house! a Class III felony! and using a firearm to commit a felony! a Class II felony. 2. Issues tried below. Mr. Paez entered a plea of no contest to the charge of discharging a firearm at an inhabited dwelling house. The state dismissed the charge of using a firearm to commit a felony. The sentence imposed by the District Court is the only contested issue. 3. How the issues were decided. After pleading no contest to the charge of discharging a firearm at an inhabited dwelling house! Mr. Paez was sentenced to serve an indeterminate term of three to five years in the Nebraska Department of Corrections. He was given credit for 18 days already served. 1

4 4. Scope of review. An appellate court may reduce a sentence when the sentence is excessive or when there has been an abuse of discretion. ASSIGNMENT OF ERROR The sentence imposed upon the defendant, although within the statutory limits is nevertheless excessive and constituted an abuse of discretion by the trial court. PROPOSITIONS OF LAW 1. A sentence of imprisonment should not exceed the minimum period consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. state v. Moore, 198 Neb. 317, 252 N.W.2d 617 (1977). 2. Among the factors to be considered in the imposition of a sentence is the defendant's age, mentality, education, experience, social and cultural background, and past criminal or law-abiding conduct, motivation for the offense, nature of the offense and amount of violence involved in the commission of the 2

5 crime. State v. True, 236 Neb. 274, 460 N.W.2d 668 (1990). State v. Jones, 232 Neb. 576, 441 N.W.2d 605 (1989). State v. Richter, 220 Neb. 551, 371 N.W.2d 125 (1985). State v. Swillie, 218 Neb. 551, 357 N.W.2d 212 (1984). 3. A sentence will be reviewed if its imposition would constitute an abuse of discretion, although the sentence falls within the statutory parameter for the offense in question. State v. Masur, 230 Neb. 620, 432 N.W.2d 815 (1988). State v. Richter, 220 Neb. 551, 371 N.W.2d 125 (1985) State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982). 4. Neb. Rev. Stat. Section (1995) gives this Court authority to reduce a sentence on appeal when a said sentence is excessive and would result in a substantial miscarriage of justice. State v. Komar, 213 Neb. 376, 329 N.W.2d 190 (1983). 5. Judicial abuse of discretion means that the reasons or rulings of the trial judge are clearly untenable, unfairly 3

6 depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988). STATEMENT OF FACTS On April 8, 1997, a complaint was filed in the Scotts Bluff County Court. The complaint charged Mr. Paez with one Class III felony count of discharging a firearm at an inhabited dwelling house, and one Class II felony count of using a firearm to commit a felony (T3). The Scotts Bluff County Public Defender was appointed to give Mr. Paez legal representation on April 8, 1997 (T12). A preliminary hearing was held on April 21, 1997, and Mr. Paez was bound over on the felony charges contained in the complaint (T12-13). On April 28, 1997, an information containing the above described charges was filed in the Scotts Bluff County District Court (T15-16). On May 16, 1997, the Mr. Paez appeared I':' in District Court and pursuant to a plea bargain, entered a plea of no contest to the charge of discharging a firearm at an inhabited dwelling house. The state dismissed the charge of using a firearm to commit a felony (T17) A presentence investigation was ordered and sentencing was scheduled for a 4

7 later date: On June 27, 1997, Mr. Paez was sentenced to serve an indeterminate term of three to five years in the Nebraska Department of Corrections. He was given credit for 18 days already served. (T16,17). Mr. Paez perfected his appeal to this Court. ARGUMENT THE SENTENCE IMPOSED UPON THE DEFENDANT, ALTHOUGH WITHIN THE STATUTORY LIMITS WAS NEVERTHELESS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION BY THE TRIAL COURT Mr. Paez contends that the sentence imposed is excessive and constitutes an abuse of discretion by the trial court. A sentence of imprisonment should not exceed the minimum period consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. State v. Moore 198 Neb. 317, 252 N.W.2d 617 (1977). A sentence will be reviewed if its imposition would constitute an abuse of discretion, although the sentence falls within the statutory parameters for the offense in question. State v. Masur, 230 Neb. 5

8 620, 432 N.W.2d 815 (1988); State v. Richter, 220 Neb. 551, 371 N.W.2d 125 (1985); State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982). Among the factors to be considered in the imposition of a sentence is the defendant's age, mentality, education, experience, social and cultural background, past criminal or lawabiding conduct, motivation for the offense, nature of the offense and the violence involved in the commission of the crime. State v. True, 236 Neb N.W.2d 668 (1990); State v. Jones, 232 Neb. 576, 441 N.W.2d 605 (1989); State v. Richter, Id.; State v. Swillie, 218 Neb. 551, 357 N.W.2d 212 (1984). At the time of sentencing, Mr. Paez was only 17 years old (PSI-3). He has lived in the Scotts Bluff County area for most of his life. He was employed full time at Taco Bell (PSI-3). Mr. Paez completed the tenth grade in school (PSI-14) Mr. Paez comes from a dys-functional family. His parents divorced when he ': was young, his father was abusive to his mother, and had an alcohol and drug problem (PSI-12) (15:3-9). Mr. Paez had been living with his father at the time of the incident in this case. His father exercised no control over him (PSI-12). Mr. Paez has been diagnosed with Attention Deficit Hyperactive Disorder, but 6

9 was not taking the recommended medications because his father was opposed to it (PSI-15). Mr. Paez has emotional problems that stem from an accident that occurred in his home when he was ten or eleven years old. He accidentally shot an eleven-year-old friend t while showing him a hunting rifle t the friend died as a result (PSI-15) (14: 17-25). At sentencing t Mr. Paez t mother read a letter that she had received from him. In the letter Mr. Paez expressed his desire to change (12:16-18). His mother also stated that she has seen a lot of significant changes in her son since he began his treatments and that sending Mr. Paez to prison will not help anything (13:16-21) Mr. Paez has been on medication for ADHD since May 23 t 1997 (PSI-15). Mr. Paez t record consists of minor misdemeanor offenses until the current offense (PSI-5-7) (14:13-14). Dan Hubert t an instructor at the juvenile detention center who had been working with Mr. Paez t submitted a letter. In the letter he stated that Mr. Paez was above average intelligence and that he possessed a competency beyond his years and social environment. Mr. Hubert felt that Mr. Paez "has the potential to become a coveted contributor to our society if given the proper direction and academic opportunities." (16:10-20). Incarcerating Mr. Paez will not accomplish this t it will only expose him to the 7

10 sort of persons he should not be associating with (17:14-18) (18:13-18). Mr. Paez knew that what he had done was wrong and expressed his remorse (19:12-17). He expressed a desire to change his life (20:6-10) (21:1-17). Given all the facts and circumstances, Mr. Paez argues that Intensive Supervised Probation would have been more appropriate. On probation, Mr. Paez would be supervised and can continue his counseling. Judicial abuse of discretion means that the reasons or rulings of the trial judge are clearly untenable, unfairly depriving the litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Trevino, 230 Neb. 497, 432 N.W.2d 503 (1988). Neb. Rev. Stat. Section (1995) gives this Court the authority to reduce a sentence on appeal when a said sentence is excessive and would result in the substantial miscarriage of justice. State v. Komar, 213 Neb. 376, 329 N.W.2d 120 (1983) 8

11 CONCLUSION Based on the foregoing, Mr. Paez urges this Court to find that his sentence is excessive and sentence him to a term of probation or reduce his sentence. Respectfully submitted BENJAMIN PAEZ Defendant/Appellant BY PUBLIC DEFENDER w. E. l'iladelung # Deputy Public Defender th Street Gering, Nebraska (308)

12 IN THE COURT OF APPEALS OF THE STATE OF NEBRASKA THE STATE OF NEBRASKA, Appellee, -vs- BENJAMIN PAEZ, Appellant. GENERAL NO. PROOF OF SERVICE A STATE OF NEBRASKA :ss COUNTY OF SCOTTS BLUFF W. E. Madelung, being first duly sworn on his oath, deposes and says that he is a Deputy Public Defender for the Scotts Bluff County Public Defender's Office; that the Scotts Bluff County Public Defender is the appointed counsel for the appellant in the above-entitled case; that he served two true copies of appellant's brief on Don Stenberg, Attorney General for the State of Nebraska, at 2115 State Capitol, Lincoln, Nebraska, 68509, by certified mail, return receipt requested, on the 17th day of September W. E. Madeiung {--'.A SUBSCRIBED and sworn to before me this ~ day of September (seal & Commiss~on Expires) of Nebraska ft DIANNE K. SCHREINER J:GENERALNOTARY.State.. My Comm. Exp. ' l-i \- Ll~ 10 Notary Public