Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/13/2018 09:12 AM CST




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                                Nebraska Court of A ppeals A dvance Sheets
                                     26 Nebraska A ppellate R eports
                                                   STATE v. GIBSON
                                                Cite as 26 Neb. App. 559




                                         State of Nebraska, appellant,
                                          v. Jason T. Gibson, appellee.
                                                     ___ N.W.2d ___

                                        Filed November 13, 2018.   No. A-17-1272.

                1.	 Sentences: Appeal and Error. When reviewing a sentence within the
                    statutory limits, whether for leniency or excessiveness, an appellate
                    court reviews for an abuse of discretion.
                2.	 Judges: Words and Phrases. A judicial abuse of discretion exists
                    only when the reasons or rulings of a trial judge are clearly untenable,
                    unfairly depriving a litigant of a substantial right and denying a just
                    result in matters submitted for disposition.
                3.	 Appeal and Error. Plain error may be found on appeal when an error
                    unasserted or uncomplained of at trial, but plainly evident from the
                    record, prejudicially affects a litigant’s substantial right and, if uncor-
                    rected, would result in damage to the integrity, reputation, and fairness
                    of the judicial process.
                4.	 Sentences: Judgments. If an oral pronouncement of sentence is invalid
                    but the written judgment imposing sentence is valid, the written judg-
                    ment is looked to and considered controlling.
                5.	 Sentences: Appeal and Error. Neb. Rev. Stat. § 29-2322 (Reissue
                    2016) sets forth the factors that an appellate court is to consider when
                    reviewing a sentence alleged to be excessively lenient.
                6.	 Sentences. When imposing a sentence, a sentencing judge should con-
                    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
                    ence, (4) social and cultural background, (5) past criminal record or
                    record of law-abiding conduct, and (6) motivation for the offense, as
                    well as (7) the nature of the offense and (8) the amount of violence
                    involved in the commission of the crime.
                7.	 Sentences: Probation and Parole. Where no mandatory minimum term
                    of imprisonment is statutorily required, a term of probation is a viable
                    alternative, unless, having regard to the nature and circumstances of
                    the crime and the history, character, and condition of the defendant,
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            Nebraska Court of A ppeals A dvance Sheets
                 26 Nebraska A ppellate R eports
                              STATE v. GIBSON
                           Cite as 26 Neb. App. 559

     the court finds imprisonment is necessary for protection of the public
     because the defendant is likely to reoffend, the defendant is in need of
     correctional treatment most effectively provided through commitment to
     a correctional facility, or the seriousness of the crime would be depreci-
     ated by a lesser sentence.
 8.	 Sentences. To issue a lesser sentence upon a conviction because another
     person may be more culpable detracts from the requirement that the sen-
     tencing court consider the nature and circumstances of the present crime
     and the characteristics of the offender before it.

  Appeal from the District Court for Sarpy County: Stefanie
A. M artinez, Judge. Sentence vacated, and cause remanded
with directions.
   Phil Kleine, Deputy Sarpy County Attorney, for appellant.
   Donald L. Schense, of Law Office of Donald L. Schense,
for appellee.
   Pirtle, R iedmann, and Bishop, Judges.
   R iedmann, Judge.
                      INTRODUCTION
  Jason T. Gibson was sentenced to 180 days’ incarceration
and 5 years’ probation on his conviction for attempted first
degree sexual assault of a child, a Class II felony. The State of
Nebraska has appealed the sentence, claiming that the district
court for Sarpy County abused its discretion in imposing an
excessively lenient sentence. Because we agree, we vacate the
sentence, and remand the cause with directions.

                       BACKGROUND
   Gibson was initially charged with first degree sexual assault
of a child, a Class IB felony which carries a mandatory mini-
mum sentence of 15 years in prison for the first offense. See
Neb. Rev. Stat. § 28-319.01 (Reissue 2016). In exchange for
Gibson’s agreement to plead no contest, the State amended
the charge to attempted first degree sexual assault of a child, a
Class II felony.
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          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. GIBSON
                       Cite as 26 Neb. App. 559

   At the plea hearing, the State set forth the factual basis
as follows:
      [B]etween December 1st of 2016, and January 31st of
      2017, DeArch Stubblefield was prostituting out an indi-
      vidual by the name of E.L., [born in June 2001]. E.L.
      stated that between December 1st, 2016, and January 31st,
      2017, . . . Stubblefield and her were picked up by a male
      party later identified as . . . Gibson. That male then drove
      them to his house . . . in Sarpy County, Nebraska.
         ....
         [T]here all three parties involved engaged in inter-
      course, which happened on the couch. During this meet-
      ing, money was exchanged after the sexual intercourse.
      The intercourse would include sexual penetration or
      penile penetration of . . . Gibson of E.L.
         E.L. was later, during an investigation, shown a photo
      lineup and identified the Defendant, . . . Gibson. . . .
      Gibson was later interviewed and he further admitted
      to having sexual intercourse with E.L. on the couch at
      [this location].
Based upon the above factual basis and a finding that the
plea was made knowingly, intelligently, and voluntarily, the
court accepted the plea and found Gibson guilty of attempted
first degree sexual assault of a child. Gibson agreed to the
plea despite being incorrectly advised by the district court
that a Class II felony carried a maximum minimum sentence
of 1 year’s incarceration. A presentence investigation (PSI)
was ordered.
   The PSI revealed that the present offense was Gibson’s
first criminal activity for which he was charged. All testing
and assessments placed him in the low risk to reoffend cat-
egory. He had been a member of the U.S. Air Force for 16
years, receiving commendable reviews and numerous honors.
Upon contact from the police, he immediately admitted his
acts, although he continually denied that he was aware of
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          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. GIBSON
                       Cite as 26 Neb. App. 559

the victim’s true age, claiming that both she and Stubblefield
admitted to misrepresenting her age.
   According to the PSI, Gibson became involved in this inci-
dent by responding to a “Craigslist” posting that advertised an
opportunity to join two other people for a sexual encounter.
Gibson admitted that he made all arrangements through Dearch
Stubblefield, the individual who posted the advertisement,
and that he paid Stubblefield $40 after the sexual encounter.
Gibson’s description of the encounter discloses that after arriv-
ing at Gibson’s house, Stubblefield directed E.L. to take off
her clothes and that E.L. did not engage in any discussion
with Gibson during the encounter. The PSI also includes a
“Memorandum” authored by Gibson and directed to the sen-
tencing court. In it, Gibson points out that he was misled by
both Stubblefield and E.L. as to their ages and he describes
what he has lost as a result of this incident, but mentions
nowhere the effects on the victim, E.L.
   At the sentencing hearing, the court stated:
     I can hope that the system does what it is designed to do,
     and in my reading of the [PSI], it indicates to me that . . .
     Stubblefield has, in large part, the majority of the respon-
     sibility, from the materials I’ve received. And my hope is
     that [E.L.] is given some sort of justice in that sentence,
     most significantly.
The court proceeded to sentence Gibson, stating:
        There is [sic] a number of issues that I believe your
     attorney has addressed that qualifies mitigating circum-
     stances in your circumstance in this case. I also agree
     that there is an element of punishment as well for your
     choice in this matter. I do think that you have accepted
     responsibility. I think you appreciate the seriousness of
     your actions, although most probably because you’ve now
     suffered consequences that were not contemplated at the
     time that you made this choice.
   The court concluded, “[I]t’s going to be the order and judg-
ment of the Court that you serve a term of incarceration at the
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. GIBSON
                      Cite as 26 Neb. App. 559

Sarpy County Jail for 180 days. There will be a term of proba-
tion for five years to be served upon completion of that jail
time.” A written “Order of Probation (Jail confinement)” was
entered the same day, sentencing Gibson to 5 years of “[t]radi-
tional” supervised probation, subject to numerous conditions,
including a 180-day term in the Sarpy County jail. Gibson was
also ordered to comply with the Sex Offender Registration Act.
The State timely filed this appeal.
                 ASSIGNMENTS OF ERROR
   The State assigns that the sentence imposed was excessively
lenient because the district court (1) failed to appropriately
apply Neb. Rev. Stat. § 29-2322 (Reissue 2016) and (2) based
its sentence upon improper, impermissible, and nonrelevant
considerations.
                  STANDARD OF REVIEW
   [1,2] When reviewing a sentence within the statutory lim-
its, whether for leniency or excessiveness, an appellate court
reviews for an abuse of discretion. State v. Parminter, 283
Neb. 754, 811 N.W.2d 694 (2012). A judicial abuse of discre-
tion exists only when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial
right and denying a just result in matters submitted for disposi-
tion. Id.
                          ANALYSIS
   Before addressing the merits of the State’s appeal, we
address two separate issues: the sentence actually imposed and
the appropriate statutory provisions to be considered.
Sentence Imposed.
   Pursuant to a plea agreement, Gibson was convicted of
attempted first degree sexual assault of a child, a Class
II felony. See Neb. Rev. Stat. § 28-201 (Supp. 2017) and
§ 28-319.01(1). In its oral pronouncement at sentencing, the
court sentenced Gibson to 180 days in jail, to be followed by
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          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. GIBSON
                       Cite as 26 Neb. App. 559

5 years of probation. However, Class II felonies are punish-
able by 1 to 50 years’ imprisonment. Neb. Rev. Stat. § 28-105
(Supp. 2017). Therefore, if the court intended to sentence
Gibson to incarceration, it was plain error to do so for less than
1 year, nor could it sentence him to incarceration and impose
a subsequent term of probation. See Neb. Rev. Stat. § 29-2260
(Reissue 2016) (allowing court to impose period of probation
in lieu of incarceration in certain situations).
   [3] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, repu-
tation, and fairness of the judicial process. State v. Vanness,
300 Neb. 159, 912 N.W.2d 736 (2018). Because the sentence
pronounced was statutorily unauthorized, it was invalid and
constitutes plain error.
   [4] Despite its oral pronouncement, the court subsequently
entered an “Order of Probation (Jail confinement)” on the day
of sentencing. In that order, the court imposed a 5-year proba-
tion period and included incarceration for 180 days in the Sarpy
County jail as a condition of the probation. Such a sentence is
valid. See § 29-2260. If an oral pronouncement of sentence is
invalid but the written judgment imposing sentence is valid, the
written judgment is looked to and considered controlling. State
v. Brauer, 16 Neb. App. 257, 743 N.W.2d 655 (2007). Because
the written order is a valid sentence, we determine that Gibson
was sentenced to probation that included 180 days’ incarcera-
tion as a condition thereof.

Applicable Statutory Provisions.
    [5] The State assigns that “the sentence imposed was exces-
sively lenient because the Court failed to appropriately apply
. . . §29-2322.” However, § 29-2322 sets forth the factors that
an appellate court is to consider when reviewing a sentence
alleged to be excessively lenient. Those factors include (1) the
nature and circumstances of the offense; (2) the history and
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. GIBSON
                      Cite as 26 Neb. App. 559

characteristics of the defendant; (3) the need for the sentence
imposed to afford deterrence; (4) the need for the sentence to
protect the public from further crimes of the defendant; (5) the
need for the sentence to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punish-
ment for the offense; (6) the need for the sentence to provide
the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effec-
tive manner; and (7) any other matters appearing in the record
that the appellate court deems pertinent.
   [6] Section 29-2322 does not govern what factors the sen-
tencing court is to consider, although many of the factors
overlap. When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense
and (8) the amount of violence involved in the commission
of the crime. State v. Carpenter, 293 Neb. 860, 880 N.W.2d
630 (2016).
   In the context of this appeal in which the court sentenced
Gibson to probation, the statute governing a sentencing court’s
decision to withhold incarceration is also implicated. Section
29-2260 states:
         (2) Whenever a court considers sentence for an offender
      convicted of either a misdemeanor or a felony for which
      mandatory or mandatory minimum imprisonment is not
      specifically required, the court may withhold sentence
      of imprisonment unless, having regard to the nature and
      circumstances of the crime and the history, character, and
      condition of the offender, the court finds that imprison-
      ment of the offender is necessary for protection of the
      public because:
         (a) The risk is substantial that during the period of
      probation the offender will engage in additional crimi-
      nal conduct;
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. GIBSON
                      Cite as 26 Neb. App. 559

        (b) The offender is in need of correctional treatment
     that can be provided most effectively by commitment to a
     correctional facility; or
        (c) A lesser sentence will depreciate the seriousness of
     the offender’s crime or promote disrespect for law.
        (3) The following grounds, while not controlling the
     discretion of the court, shall be accorded weight in favor
     of withholding sentence of imprisonment:
        (a) The crime neither caused nor threatened serious
     harm;
        (b) The offender did not contemplate that his or her
     crime would cause or threaten serious harm;
        (c) The offender acted under strong provocation;
        (d) Substantial grounds were present tending to excuse
     or justify the crime, though failing to establish a defense;
        (e) The victim of the crime induced or facilitated com-
     mission of the crime;
        (f) The offender has compensated or will compensate
     the victim of his or her crime for the damage or injury the
     victim sustained;
        (g) The offender has no history of prior delinquency
     or criminal activity and has led a law-abiding life for
     a substantial period of time before the commission of
     the crime;
        (h) The crime was the result of circumstances unlikely
     to recur;
        (i) The character and attitudes of the offender indicate
     that he or she is unlikely to commit another crime;
        (j) The offender is likely to respond affirmatively to
     probationary treatment; and
        (k) Imprisonment of the offender would entail exces-
     sive hardship to his or her dependents.
   The question before us then becomes whether the sentenc-
ing court abused its discretion in imposing probation instead
of sentencing Gibson to incarceration. See State v. Harrison,
255 Neb. 990, 588 N.W.2d 556 (1999).
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          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. GIBSON
                       Cite as 26 Neb. App. 559

Adequacy of Sentence Imposed.
    [7] A Class II felony carries a possible sentence of 1 to 50
years’ imprisonment, but no mandatory minimum is required,
although Gibson was erroneously advised during the plea hear-
ing that a mandatory minimum of 1 year existed. Because no
mandatory minimum was required, a term of probation was
a viable alternative, unless, having regard to the nature and
circumstances of the crime and the history, character, and
condition of Gibson, the court found imprisonment was neces-
sary for protection of the public because Gibson was likely to
­reoffend, he was in need of correctional treatment most effec-
 tively provided through commitment to a correctional facility,
 or the seriousness of the crime would be depreciated by a
 lesser sentence. See § 29-2260(2).
    The record supports the sentencing court’s decision to
 impose probation in lieu of incarceration based upon Gibson’s
 unlikelihood to reoffend and the availability of treatment;
 however, § 29-2260 requires an additional consideration,
 that being the nature of the crime and whether probation
 would depreciate its seriousness or promote a disrespect of
 the law.
     It is clear from both the factual basis offered in support of
 the plea and the information contained within the PSI that E.L.
 was the victim of sex trafficking, as described by the State,
 with Stubblefield as her “pimp” and Gibson as one of her cus-
 tomers. The dissent attempts to diminish Gibson’s culpability
 by describing the incident as “a case of a sexually active high
 school couple who made an irresponsible decision,” but that
 description perpetuates the antiquated misperception that per-
 sons who are held out for sexual pleasure by third parties are
 not victims. And it disregards the conviction and sentence of
 Stubblefield for attempted human trafficking that was recently
 summarily affirmed by this court on September 11, 2018, in
 case No. A-18-159.
    As admitted to by Gibson, Gibson responded to a Craigslist
 posting made by Stubblefield, Gibson made all arrangements
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. GIBSON
                      Cite as 26 Neb. App. 559

through Stubblefield, Stubblefield was the one who directed
E.L. to remove her clothing, and it was Stubblefield whom
Gibson paid. The reality of the situation is that Gibson, age 40
at the time, engaged in first degree sexual assault of a child
facilitated online, through a third party, and then sought leni-
ency for having been mistaken as to her age. While we recog-
nize the attributes of Gibson and his lack of a prior criminal
history, the seriousness of the offense leads us to conclude that
a term of probation depreciates the seriousness of the offense
and promotes disrespect of the law.
   As set forth above, the factors we consider in determin-
ing whether a sentence is excessively lenient include: (1) the
nature and circumstances of the offense; (2) the history and
characteristics of the defendant; (3) the need for the sentence
imposed to afford deterrence; (4) the need for the sentence
to protect the public from further crimes of the defendant;
(5) the need for the sentence to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment for the offense; (6) the need for the sentence to
provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the
most effective manner; and (7) any other matters appearing
in the record that the appellate court deems pertinent. See
§ 29-2322.
   Taking the above factors into consideration—particularly
the nature and circumstances of the offense; the need to afford
deterrence for this type of crime; and the need for the sentence
to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment—we conclude that a
term of probation was excessively lenient.

Consideration of Improper,
Impermissible, and
Irrelevant Factors.
   The sentencing court’s decision was based in part upon
Stubblefield’s involvement and culpability in the crime. The
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          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. GIBSON
                       Cite as 26 Neb. App. 559

State claims this was improper, and we agree. Before sentenc-
ing Gibson, the court stated:
      I can hope that the system does what it is designed to do,
      and in my reading of the [PSI], it indicates to me that . . .
      Stubblefield has, in large part, the majority of the respon-
      sibility, from the materials I’ve received. And my hope is
      that [E.L.] is given some sort of justice in that sentence,
      most significantly.
   Nowhere in our statutes, nor in our case law, is a sen-
tencing judge instructed to consider whether the victim will
be “given some sort of justice” in the sentence of another
wrongdoer when crafting a sentence for the particular defend­
ant before the court. We recognize that where two or more
defendants are convicted for the same offense and different
penalties are inflicted, it is appropriate for an appellate court
to examine the evidence to determine whether there are justi-
fiable reasons for differences in sentences rendered. See State
v. Morrow, 220 Neb. 247, 369 N.W.2d 89 (1985). However,
Gibson is the sole defendant in this matter, and at the time
of sentencing, there was no evidence presented regarding the
nature of the charge against Stubblefield, whether he had been
convicted or sentenced, or the nature of the sentence if one
had been imposed.
   [8] The court’s focus should have been on Gibson and his
conviction for attempted first degree sexual assault of a child,
taking into consideration all the circumstances of this case. To
issue a lesser sentence because another person may be more
culpable detracts from the requirement that the sentencing court
consider the nature and circumstances of the present crime and
the characteristics of the offender before it. Consideration of
whether E.L. will be “given some sort of justice” through the
sentencing of Stubblefield was not an appropriate factor to
consider and appears to have resulted in a more lenient sen-
tence for Gibson. We find that the sentencing court abused its
discretion when it considered this factor.
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              26 Nebraska A ppellate R eports
                         STATE v. GIBSON
                      Cite as 26 Neb. App. 559

                        CONCLUSION
   We conclude that the district court abused its discretion by
imposing an excessively lenient sentence and considering an
irrelevant factor when imposing sentence upon Gibson. We
vacate the sentence and remand the cause to the district court
with directions to impose a greater sentence. The sentence
should be imposed by a different district court judge than the
original sentencing judge.
	Sentence vacated, and cause
	                               remanded with directions.

   Bishop, Judge, dissenting.
   In my review of the record, this case seems less a “sex traf-
ficking” case (as characterized by the State and the majority
opinion), and more a case of a sexually active high school
couple who made an irresponsible decision to experiment
with their sexuality by engaging in two “threesome” sexual
encounters which Stubblefield arranged through Craigslist.
One of those two encounters included Gibson. Stubblefield,
age 18 at the time, attended the same high school as E.L., and
the two had been sexually active with each other for about
6 months when Stubblefield proposed the threesome sexual
encounters, to which E.L. agreed. Because E.L. was about
5 months shy of turning 16, she could not legally consent
to those encounters. According to E.L., Stubblefield wanted
to “explore his sexuality.” Contrary to the majority’s asser-
tion, my description above does not attempt to diminish
Gibson’s culpability, nor is it based on an antiquated misper-
ception. Rather, it simply sets forth information contained
in the record before us. But no matter how we might frame
the facts, my dissent is driven by our standard of review.
When reviewing a trial court’s imposition of a sentence,
this court’s review must be constrained to determining only
whether the trial court abused its discretion. A judicial abuse
of discretion exists only when the reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a litigant
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          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. GIBSON
                       Cite as 26 Neb. App. 559

of a substantial right and denying a just result in the matters
submitted for disposition. State v. Parminter, 283 Neb. 754,
811 N.W.2d 694 (2012). The record in this case supports the
district court’s decision to impose probation; accordingly, its
decision is not “clearly untenable,” meaning it is not clearly
indefensible, unsound, or flawed. See id. at 257, 811 N.W.2d
at 697.
   Most notably, at the sentencing hearing, the district court
referred to the “number of issues” Gibson’s attorney addressed
at the hearing which qualified as “mitigating circumstances”
for Gibson. These remarks included the attorney’s statement
that he had “helped [Gibson] in his divorce” years ago, so he
had known Gibson for a number of years. Gibson’s attorney
then pointed out the following: Gibson had given “16 honor-
able years of service” in the U.S. Air Force; the courtroom was
“full of people” supporting Gibson; there were “in excess of 30
letters [written] attesting to [Gibson’s] good character and repu-
tation”; Gibson was honest and cooperative when contacted by
the police—he accepted responsibility “from day one”; Gibson
was “extremely embarrassed, ashamed, and remorseful for his
actions”; the PSI shows “an individual who has exemplified
what is the best of people” but also that “we are all prone to
make mistakes, some more serious than others”; there were
“pages of [Gibson’s] awards, his decorations, his performance
reports, all showing what a valued, trusted airman he was” in
the Air Force; the clinical psychologist’s letter noted Gibson
was “not classif[ied] as a pedophile under DSM-5”; Gibson
had no criminal history; Gibson had “very low risk assessment
totals” under the categories of education, employment, family,
companions, alcohol, drugs, criminal attitude, and antisocial;
the administrative discharge proceedings that will take place
will result in the forfeiture of Gibson’s career in the Air Force
after 16 years; all of Gibson’s sex offender risk assessment
totals were very low; Gibson would have to register as a sex
offender; and Gibson posed little, if any, risk to society in
the future.
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              26 Nebraska A ppellate R eports
                         STATE v. GIBSON
                      Cite as 26 Neb. App. 559

    Gibson’s attorney acknowledged that Gibson had “a great
lapse in judgment” when he went to Craigslist and responded
to “an ad with some people who purportedly were representing
themselves to be of a certain age.” Gibson’s attorney pointed
out that subjecting Gibson to the terms and conditions required
under probation would not show disrespect for the law or
diminish the severity of the crime and that Gibson and society
would be better served by placing him on probation and giv-
ing him an opportunity to better himself and be a productive
member of society. Gibson personally informed the court that
he was “extremely remorseful,” not just for what he was going
to lose, or for letting down his coworkers, but also for E.L. and
her family.
    The PSI states that Gibson “has a spotless criminal record
other than his current legal situation” and that “[i]t appears
that his behavior in this offense would be out of character for
. . . Gibson.”
    The district court found that Gibson had accepted respon-
sibility for and appreciated the seriousness of his actions. In
addition to the 180 days in jail, the 5 years of probation will
require Gibson to comply with numerous conditions. These
include the following: obey all laws and report any violation
by the next business day; avoid social contact with persons
having criminal records or who are currently on probation
or parole; report to probation when directed and permit the
probation officer to visit at all times and places; reside within
the state unless otherwise authorized by the probation officer;
obtain permission before changing address or employment;
cooperate in all matters which might affect probation and
truthfully answer all inquiries from the probation officer;
maintain suitable employment; abstain from the use of alco-
hol or controlled substances (unless prescribed by a physi-
cian); cannot be present in any location where the primary
business is to serve alcohol or attend any social function
at which alcoholic beverages are served without permission
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                          STATE v. GIBSON
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from the probation officer; submit to random chemical test-
ing of blood, breath, or urine; submit to random searches
and seizures of the person, premises, or vehicle without a
warrant and whether or not probable cause exists upon the
request of a probation officer or law enforcement officer
when authorized by the probation officer; pay all fines, court
costs, and fees; complete a psychosexual evaluation and fol-
low all recommendations; continue therapy and medication
management; attend any support group if deemed necessary
by the probation officer; have no contact with the victim
during the life of the probation; participate in “moral recona-
tion” therapy; have no unfiltered access to the internet or to
any social media sites; have no contact with children under
the age of 18; have no relationships with any individuals
who have children under the age of 18; and submit to regu-
lar search and seizure of the person, property, or vehicle, to
include electronic devices.
   Despite these numerous requirements and restrictions on
Gibson’s life for the duration of his probation, the majority
nevertheless concludes the district court abused its discretion
by failing to impose incarceration instead of probation. The
majority acknowledges that “[t]he record supports the sentenc-
ing court’s decision to impose probation in lieu of incarceration
based upon Gibson’s unlikelihood to reoffend and the avail-
ability of treatment . . . .” However, the majority then focuses
on “the nature of the crime and whether probation would
depreciate its seriousness or promote disrespect of the law.” It
is difficult to imagine that the district court saw the crime as
any less serious than this court, and it is not clear why a 5-year
probation sentence on this record promotes disrespect for the
law. To the contrary, the record before us fully supports the
district court’s decision to order probation when considering
all sentencing factors, as well as those specific factors favor-
ing withholding a sentence of imprisonment as set forth in
§ 29-2260(3).
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                         STATE v. GIBSON
                      Cite as 26 Neb. App. 559

   The majority also states that the district court’s decision
was improperly “based in part upon Stubblefield’s involve-
ment and culpability in the crime” and that this “was not an
appropriate factor to consider and appears to have resulted in
a more lenient sentence for Gibson.” I do not read the dis-
trict court’s comment that it hoped E.L. “is given some sort
of justice in [Stubblefield’s] sentence, most significantly” to
suggest that this was a factor the court relied upon when sen-
tencing Gibson to probation. That comment could certainly
mean that the district court expected Stubblefield to be more
significantly sentenced than Gibson and that this would result
in a greater impact in terms of justice for E.L. However, that
does not necessarily mean the court allowed consideration
of Stubblefield’s potential sentence to influence its decision
when sentencing Gibson. And given the abundance of favor-
able information presented to the district court to support a
sentence of probation, the district court’s comment hardly rises
to an abuse of discretion.
   As noted in Gibson’s brief, “While there is a temptation
on a visceral level to conclude that anything less than incar-
ceration depreciates the seriousness of crimes of this sort, it
is the function of the sentencing judge, in the first instance
to evaluate the crime and the offender.” Brief for appellee at
13. The appropriateness of a sentence is necessarily a subjec-
tive judgment and includes the sentencing judge’s observation
of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life. State v.
Brown, 300 Neb. 57, 912 N.W.2d 241 (2018). And as this
court recently stated when denying relief in an excessively
lenient sentence appeal involving a 4-year combined sentence
for a defendant convicted of two drug offenses and three fire-
arm offenses:
          Although [the defendant’s] history [three prior fel-
      ony convictions] and the nature and circumstances of
      the present offenses certainly could have supported a
      ­longer term of incarceration [the defendant faced up to
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                        STATE v. GIBSON
                     Cite as 26 Neb. App. 559

     250 years’ imprisonment], when reviewing sentences for
     excessive leniency, we do not review the sentence de
     novo and the standard is not what sentence we would
     have imposed.
State v. Felix, 26 Neb. App. 53, 60, 916 N.W.2d 604, 609
(2018) (noting abuse of discretion standard of review applies
whether reviewing sentence for leniency or excessiveness).
Accordingly, adhering to the abuse of discretion standard of
review applicable to this court’s review of Gibson’s sentence,
and finding no abuse of discretion by the district court, I
would affirm Gibson’s conviction and sentence.
