                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                   STATE V. WELTY-HACKETT


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLANT,
                                                V.

                            TAYLOR W. WELTY-HACKETT, APPELLEE.


                           Filed December 19, 2017.      No. A-17-239.


       Appeal from the District Court for Buffalo County: WILLIAM T. WRIGHT, Judge. Sentence
vacated, and cause remanded with directions.
       Shawn R. Eatherton, Buffalo County Attorney, and Patrick M. Lee for appellant.
       Thomas S. Stewart, Deputy Butler County Public Defender, for appellee.


       MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
       MOORE, Chief Judge.
                                        INTRODUCTION
        Taylor W. Welty-Hackett (Welty) pled no contest to attempted first degree sexual assault,
a Class IIA felony. The district court for Buffalo County sentenced Welty to a 4-year term of
intensive supervised probation. The State of Nebraska appeals the sentence as excessively lenient.
Because we find that the district court considered impermissible and irrelevant factors in
sentencing Welty, we vacate the sentence, and remand the cause with directions.
                                        BACKGROUND
        In August of 2015, the Kearney Police Department received a report that Welty had sexual
relations with a 12-year-old girl, A.R. The officer assigned to the case contacted A.R., her sister,
and her mother to gather facts. A.R.’s sister showed the officer a conversation she had with Welty
on Facebook. She asked Welty how old he was and whether he had sex with A.R. Welty responded



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that he was 21 years old and that he did have sex with A.R. The police attempted to interview A.R.
about her relationship with Welty several times, but she refused to speak other than to say she did
not tell Welty she was older than she was. Therefore, the police were only able to gather
information from Facebook and Welty’s responses to police questions.
         Welty described his dealings with A.R. to the investigating officer. According to Welty,
A.R. contacted him by “friending” him on Facebook. Welty claims A.R. told him she was 22 years
old. Immediately after Welty accepted A.R.’s friend request, A.R. sent him a message saying she
wanted to meet him. She instructed him to bring a condom to their meeting. A.R. then used
Snapchat to tell Welty to pick her up at a Walmart store. Welty suffered from regular migraines,
and self-medicated with nonprescribed controlled substances and alcohol. By the time Welty
reached the Walmart, he had taken two to three pain relievers and drank four or five beers. After
picking up A.R. in his vehicle, Welty drove her around town. At a gas station, A.R. groped his
genitals. Initially, Welty could not remember anything beyond this point, claiming he drank too
much to remember what happened. Later, he recalled driving to a Menards where he told A.R. she
needed to leave. In response, A.R. caressed his arm and asked to have sex with him. Welty and
A.R. then had sexual relations using a condom in Welty’s car. When they finished, A.R. instructed
Welty to drop her off at a gas station. He left her there between 11:30 p.m. and midnight.
         Welty was originally charged with first degree sexual assault of a child, a Class IB felony,
felony child abuse, a Class IIIA felony, and contributing to the delinquency of a minor, a Class I
misdemeanor. In the State’s third amended information, the State reduced the sexual assault charge
to attempted first degree sexual assault, a Class IIA felony. The remaining charges were dismissed.
Welty pled no contest to the third amended information at a November 14, 2016 hearing. The court
found beyond a reasonable doubt Welty was guilty of attempted first degree sexual assault. The
court ordered a presentence investigation report (PSR). The court reviewed the PSR and sentenced
Welty to a four-year term of intensive probation, subject to numerous conditions. Welty was also
ordered to comply with the Sexual Offender Registration Act (SORA). Because Welty had been
in jail for 95 days, the court gave him a 95-day jail sentence with credit for time served. The State
timely filed this appeal.
                                    ASSIGNMENTS OF ERROR
       The State assigns, consolidated and restated, that the district court erred in imposing a
sentence that was excessively lenient based upon improper, impermissible, and irrelevant
considerations.
                                     STANDARD OF REVIEW
         When reviewing a sentence within the statutory limits, 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 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. Id.
         Plain error exists where there is error, plainly evident from the record but not complained
of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to




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leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity,
reputation, and fairness of the judicial process. State v. Betancourt-Garcia, 295 Neb. 170, 887
N.W.2d 296 (2016).
                                            ANALYSIS
Excessively Lenient Sentence.
        The State assigns, as combined, that the district court abused its discretion by imposing an
excessively lenient sentence on Welty based upon improper, impermissible, and irrelevant
considerations. The State asserts the court had no reasonable factual basis for imposing probation
rather than imprisonment. The State supports its claim with the trial judge’s comments at the
sentencing hearing.
        When the State appeals from a sentence, contending that it is excessively lenient, an
appellate court reviews the record for an abuse of discretion. State v. Thompson, 15 Neb. App.
764, 735 N.W.2d 818 (2007). Similarly, a grant of probation will not be disturbed unless there has
been an abuse of discretion by the sentencing court. Id. When the State challenges a sentence as
excessively lenient, the appellate court should consider the following factors: (1) the nature and
circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for
the sentence imposed to deter further criminal conduct; (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 which the appellate court deems pertinent. State v. Parminter,
supra (restating factors listed in Neb. Rev. Stat. § 29-2322 (Reissue 2016)). A sentencing court is
not limited in its discretion to any mathematically applied set of factors. State v. Parminter, supra.
The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude and all of the facts and circumstances
surrounding the defendant’s life. Id. But the court must have some reasonable factual basis for
imposing a particular sentence. Id.
        Because the district court imposed probation rather than imprisonment, to review the
court’s decision for abuse of discretion, we must analyze the factors in Neb. Rev. Stat. § 29-2260
(Reissue 2016). Section 29-2260 provides in pertinent part:
                 (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 imprisonment 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 criminal conduct;
                 (b) The offender is in need of correctional treatment that can be provided most
        effectively by commitment to a correctional facility; or



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                (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 commission 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 excessive hardship to his or her
       dependents.

Sentencing Judge’s Comments.
         Because the bulk of the State’s complaints regarding the sentence imposed stem from the
trial judge’s comments at sentencing, we set forth those comments here:
                 The Court’s had an opportunity to go through the [PSR] several times. And the
         unfortunate thing about it is that while it is clear that the defendant in this case had sexual
         relations with a 12-year-old girl and whether he knew or did not know - technically did or
         did not know she was 12 years old, technically doesn’t make any difference. But there is
         minimal information in the PSR about what the defendant did know, at least for the
         purposes of mitigating why it happened from a sentencing standpoint. From what the Court
         can tell, all contact or all initiation of contact between the parties was made by the
         12-year-old. There is very little information in the PSR with regard to what the 12-year-old
         looked like.
                 It’s clear that, at least according to [Welty’s] relation to what happened, and he’s
         the only one apparently who related what happened to the victim’s sister or the police, that
         the 12-year-old was interested in having sex and contacted him for that specific purpose,
         even though she apparently had no prior knowledge of the person, except potentially by
         reputation. She was the aggressor, she made the advances. She actually grabbed him
         sexually and asked whether he was going to bring condoms.




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               That doesn’t excuse the act, but unfortunately, what it does do is remind the court
       of repeated instances it’s heard of over the last several years of occasions where early teen
       and preteen girls for whatever reason have decided that they want an experience and go out
       and force the issue with people that they know are older. And probably ought to know a
       hell of a lot better. And these girls are encouraged to do so by their own friends, by some
       kind of ethic which encourages them to dispense with their virginity or anything similar so
       they can have the experience that everybody else is supposedly bragging or arguing about.
               Now, it’s hard to know exactly if that’s what occurred in this case because even the
       victim refused to cooperate, refused to tell anybody anything, to include the people at [the
       Family Alliance Network].
               Sentences in somewhat similar cases have run from anywhere to 2 to 4 years up to
       12 years. And the defendant’s already served some 95 days in jail. At a minimum, he’s
       going to end up spending probably the next 25 years, if not his lifetime, functioning as a
       registered sex offender.
               And I don’t know how to bring some balance back into this thing, but probably
       about time you do so. I will tell you that in the past, Mr. Welty, probably a year ago, two
       years ago, you would be on your way to prison. But I’m going to try to bring some balance
       to the situation. So I am going to order or find you are a candidate for probation. It’s not
       going to be a particularly easy one.

       Following the imposition of sentence, the district court further advised Welty:
       Please understand, you screwed up big time, but I’ve got to find some way of bringing
       some balance back into the system, given the nature of what’s been occurring in this
       community. I don’t know any other way to do it, other than what I’ve done. And quite
       frankly, you are getting the benefit of it, for better or worse.

        The State points to the court’s comments about the victim’s physical appearance, labeling
the victim as the “aggressor,” the general problem of promiscuous teenage girls, and the need to
bring “balance” into sentencing for this type of crime, as examples of the court having considered
improper matters in imposing sentence.
        Clearly, the victim’s appearance (whether she appeared older than her given age) and
whether she was the “aggressor” of the sexual contact are irrelevant as to Welty’s guilt or
innocence. Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2016) provides that an actor, who is 19 years
of age or older, who subjects a victim who is at least 12 but less than 16 years of age to sexual
penetration, is guilty of sexual assault in the first degree. Consent or reasonable mistake as to the
age of the victim is not a defense to first degree sexual assault of a child. State v. Heitman, 262
Neb. 185, 629 N.W.2d 542 (2001). However, from the larger context of the comments made at the
sentencing hearing, it appears that the trial court was not excusing or justifying Welty’s actions.
In fact, the sentencing judge specifically stated that the victim’s actions do not “excuse the act.”
Further, the court’s comments related to the lack of information in the PSR as it relates to
“mitigating” factors “from a sentencing standpoint.”




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        To determine if a sentence of probation is appropriate, the court may weigh, among other
considerations, whether “substantial grounds were present tending to excuse or justify the crime,
though failing to establish a defense,” and whether “the victim of the crime induced or facilitated
commission of the crime.” See § 29-2260(3)(d) and (e). Thus, the court’s comments about the lack
of information regarding the victim’s appearance, Welty’s belief about her age, and the victim
being the aggressor, could be relevant considerations for withholding a sentence of imprisonment
under § 29-2260.
        The district court’s statements about the promiscuity of teenage girls and the need to bring
“balance” into sentencing sexual offenders are of greater concern. These comments do not relate
to any statutory grounds noted in § 29-2260(3) for withholding a sentence of imprisonment. These
comments clearly go beyond consideration of the facts of this particular case and were
impermissible and irrelevant factors to consider in determining an appropriate sentence in this
case.
        The State points to the case of State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998), in
support of its argument. In Pattno, the sentencing judge read a passage from the Bible that
disapproves of homosexual behavior when sentencing a male defendant for the sexual assault of a
thirteen year-old boy. The Nebraska Supreme Court concluded that the judge’s reliance on his
personal religious beliefs injected an impermissible religious consideration into the sentencing
process that could convince a reasonable person the court exercised bias or prejudice in sentencing.
Finding an abuse of discretion, the court vacated the sentence imposed and remanded with
directions that the defendant be resentenced by a different judge.
        In State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007), the defendant pled no
contest to two counts of sexual assault of a child and was sentenced to five years’ intensive
supervised probation on each count, to run consecutively. The State appealed the sentence as being
excessively lenient. The primary basis of the State’s argument revolved around certain comments
made by the sentencing judge regarding the defendant’s small physical stature which might cause
him problems if he went to prison. In affirming the sentence imposed, this court underwent a
thorough examination of the presentence investigation report and analysis of the statutory
sentencing factors, which we determined supported the imposition of probation. We concluded
that
        if the sentencing judge went awry in this case, it was only in failing to provide a more
        detailed explanation on the record of the multiple factors in the PSI which clearly justified
        the probationary sentences she imposed. Such failure caused the trial judge’s brief mention
        of [the defendant’s] small physical stature to become the focus of attention, when in reality
        it was but a minor point.

Id. at 790, 735 N.W.2d at 837.
        Unlike in State v. Thompson, the sentencing judge’s comments in this case were more than
just a “brief mention” of factors not relevant to imposing sentence. The court’s discussion of the
general promiscuity of teenage girls and the need to bring balance into the system was fairly
substantial. Further, the comments had nothing to do with this particular defendant, in contrast to
State v. Thompson. We recognize that the trial judge in this case indicated he had reviewed the



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PSR before the sentencing hearing. While the information contained in the PSR may well have
supported the probationary sentence imposed, we cannot determine from the judge’s comments at
sentencing how much weight was given to the permissible and relevant sentencing factors
compared to the impermissible and irrelevant factors. We note, however, the court’s final
comments before imposing sentence that Welty was getting the benefit of the court’s desire to
“find some way of bringing some balance back into the system, given the nature of what’s been
occurring in this community.”
        Because it appears that the trial court’s reliance upon the impermissible and irrelevant
sentence factors largely influenced his decision to impose probation, we find it necessary to vacate
the sentence imposed and remand for resentencing before a different judge.
                                      CONCLUSION
        We conclude that the district court abused its discretion by considering impermissible and
irrelevant factors when imposing sentence upon Welty. We vacate the sentence, and remand the
cause to the district court for resentencing before a different judge.
                                                                    SENTENCE VACATED, AND CAUSE
                                                                    REMANDED WITH DIRECTIONS.




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