                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. NEWCOMB


  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.

                                  OTIS R. NEWCOMB, APPELLEE.


                              Filed July 21, 2015.   No. A-14-1116.


       Appeal from the District Court for York County: JAMES C. STECKER, Judge. Affirmed.
       Candace Dick, York County Attorney, and Benjamin B. Dennis for appellant.
       Kevin V. Schlender for appellee.


       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       MOORE, Chief Judge.
                                        INTRODUCTION
       Pursuant to a plea agreement, Otis R. Newcomb pled no contest to one count of
manslaughter. The district court for York County sentenced Newcomb to a term of 5 to 10 years’
imprisonment. The State appeals Newcomb’s sentence on the ground that it is excessively lenient.
We affirm Newcomb’s sentence.
                                  FACTUAL BACKGROUND
        In the early morning hours of November 2, 2013, Newcomb was driving a vehicle when
he veered from his lane and collided with an oncoming vehicle on Highway 34 in York County,
Nebraska. As a result of the collision, one of the passengers in the oncoming vehicle suffered fatal
injuries and was pronounced deceased at the scene. The other passengers and Newcomb sustained
relatively minor injuries.




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        Originally, the State charged Newcomb with motor vehicle homicide. However, the State
later amended the information, and eventually charged Newcomb with one count of manslaughter
and one count of tampering with physical evidence. Pursuant to a written plea agreement,
Newcomb agreed to plead guilty or no contest to one count of manslaughter in exchange for the
dismissal of the evidence tampering charge.
        On July 15, 2014, Newcomb entered a plea of no contest to the amended information.
Before accepting his plea, the court advised Newcomb of his rights and the State provided a factual
basis. Summarized, the State alleged that a two-vehicle accident occurred on Highway 34 in York
County, Nebraska on November 2, 2013. The vehicles involved in the incident were a Chevrolet
Silverado truck which was traveling westbound and a Ford Econoline van owned by the York
News Times, but driven by Newcomb in the course of his employment, which was traveling
eastbound. The truck contained four occupants while Newcomb was the van’s sole occupant.
        The Nebraska State Patrol completed an accident reconstruction which determined both
vehicles were traveling at or near the posted speed limit prior to the crash. The accident
reconstruction concluded that the entirety of the van Newcomb was driving had entered the
westbound lane while traveling eastbound when the accident occurred. The reconstruction also
determined that Newcomb did not brake or attempt to brake to avoid the crash. The truck’s driver
perceived Newcomb’s oncoming vehicle and attempted to brake and swerve. Because of those
actions, a head-on collision was avoided. The impact began in front of the driver’s side front tire
of the truck and continued down the driver’s side. The passenger seated in the rear driver’s side
seat received numerous blunt force injuries from the impact and did not survive the collision.
Newcomb later explained that he had looked away from the roadway to adjust the radio.
        After the accident, the driver of the truck submitted to a blood test which revealed that he
did not have any alcohol in his system. Newcomb denied consuming any alcohol on the night of
the accident. He admitted, however, that he had consumed an entire bottle of vodka the day before.
Newcomb also had his blood tested for alcohol, but the results of that test were suppressed after
Newcomb’s successful motion.
        In the days following the accident, a relative of the deceased passenger conducted a search
of the scene of the accident in the hope of finding a cell phone that had not been recovered. While
searching for the cell phone, the relative discovered a bottle of vodka laying in tall grass
approximately 150 feet southeast of where Newcomb’s van had come to a final stop. Newcomb
denied any ownership or knowledge of the bottle, but inspection of the bottle revealed that it had
been purchased at a liquor store in Grand Island. Newcomb’s daily route for the York News Times
involved driving from York to Grand Island. Subsequent DNA testing revealed that Newcomb’s
DNA was located on the mouth area and inside cap of the vodka bottle.
        On November 24, 2014, the district court held a sentencing hearing. The State sought the
maximum sentence for Newcomb’s manslaughter conviction, emphasizing that Newcomb had
caused the death of another person while he was under the influence of alcohol. The State also
highlighted Newcomb’s Facebook posts following the accident which included commentary about
automobile accidents and drinking alcohol. Newcomb argued that he had accepted responsibility
for the accident and the Facebook posts were not indicative of his remorse. Newcomb also
informed the court that he had attended outpatient treatment for alcohol problems while he awaited



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acceptance into a more intensive program and had obligations to provide for his wife and two
young children.
        Prior to announcing Newcomb’s sentence, the district court reviewed numerous factors that
it had considered in arriving at the sentence. First, the court noted that Newcomb was 38 years old,
had a seventh grade education, and was unemployed following the accident. Next, the court
reviewed Newcomb’s criminal history. The court stated that Newcomb’s four prior DUI
convictions were “extremely concerning” and emphasized that Newcomb’s present offense also
involved alcohol. The court also discussed Newcomb’s five prior convictions for driving under
revocation or suspension. The court then addressed Newcomb’s actions following the accident.
Based on the facts that Newcomb had not begun inpatient treatment at the time of sentencing and
had minimized his alcohol use during the presentence investigation, the court doubted Newcomb’s
remorse and motivation to change his habits. The court noted that Newcomb continued to deny
that he had a drinking problem. The court went on to discuss the victim’s death as well as the
injuries and traumatic impact of the accident on the survivors.
        Finding probation to be inappropriate, and that treatment could most effectively be
provided by commitment in a correctional facility, the district court sentenced Newcomb to a term
of 5 to 10 years’ imprisonment. Newcomb received credit for 27 days of time served. The State
has appealed Newcomb’s sentence to this court.
                                   ASSIGNMENTS OF ERROR
       The State solely contends that the district court erred in imposing an excessively lenient
sentence on Newcomb.
                                     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.
                                             ANALYSIS
        Newcomb has been convicted of manslaughter, a Class III felony. Neb. Rev. Stat. § 28-305
(Reissue 2008). Class III felonies are punishable by a minimum of 1 year imprisonment and a
maximum of 20 years’ imprisonment, a $25,000 fine, or both. Neb. Rev. Stat. § 28-105 (Cum.
Supp. 2014). Newcomb’s sentence of 5 to 10 years comes within the statutory limits. Thus, we
review his sentence for an abuse of discretion.
        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 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.




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        In determining whether the sentence is excessively lenient, an appellate court considers 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 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 Neb. Rev. Stat. § 29-2322 (Reissue 2008).
        According to the presentence investigation, Newcomb has consumed alcohol since he was
17 years old. Even from a young age, when Newcomb consumed alcohol he would do so to the
point of intoxication. Newcomb’s drinking led to three prior convictions for DUI while he lived in
Mississippi. After his third conviction in 1998, Newcomb spent a total of three years in prison.
Newcomb has also been convicted of DUI in Nebraska. In 2007, he was convicted in Hamilton
County for DUI and was sentenced to probation. In March 2008, Newcomb was successfully
released from probation. Newcomb did not self-report an alcohol problem during the presentence
investigation and the probation officer concluded that he was minimizing or denying the extent of
his use of alcohol.
        In addition to his convictions for DUI, Newcomb has been convicted of various other
offenses. He has been convicted of driving while his license was suspended or revoked on five
separate occasions. In 2008, Newcomb served a 30-day jail sentence after his fourth conviction for
driving while his license was revoked or suspended. Newcomb has also been convicted of simple
domestic violence and simple assault.
        The presentence investigation further reveals that Newcomb is currently married and has
two sons, one of whom was only 2 months old at the time of Newcomb’s present offense.
Newcomb spends most of his free time caring for his children and his family has been subsiding
solely on his income. Newcomb’s wife has heart problems and apparently needs assistance caring
for their children. Newcomb has expressed remorse and is emotional when speaking about the
accident. The probation officer assessed Newcomb as a high risk to reoffend and recommended
the court impose a straight sentence of incarceration, but did not specify any term of years.
        This is a difficult case. Newcomb clearly caused the accident which resulted in the death
of another person. Although he was not ultimately charged with an alcohol-related offense, it is
clear from the record that alcohol played some role in Newcomb’s actions that night. The district
court announced that it considered that factor along with numerous other factors before sentencing
Newcomb, including Newcomb’s background, the circumstances of the offense, Newcomb’s prior
criminal history, and Newcomb’s lack of desire to make changes in his life. While the district court
imposed a sentence of imprisonment, this sentence ranges from the low to middle range for
manslaughter.
        However, in cases such as this, we do not review the sentence de novo and the standard is
not what sentence we would have imposed. See State v. Harrison, 255 Neb. 990, 588 N.W.2d 556
(1999); State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007). Having reviewed the
factors in § 29-2322, we conclude the district court did not abuse its discretion when it sentenced



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Newcomb. The court clearly considered all of the appropriate factors in arriving at its sentence.
The court’s sentence of imprisonment recognizes the seriousness of Newcomb’s offense and
removes him as a risk to public safety, albeit not for a lengthy period of time. We conclude that
while the sentence may have been somewhat lenient under the circumstances, it was not
excessively so.
                                        CONCLUSION
       The district court’s sentence was not excessively lenient.
                                                                                      AFFIRMED.




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