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08/28/2020 09:08 AM CDT




                                                         - 701 -
                               Nebraska Supreme Court Advance Sheets
                                        306 Nebraska Reports
                                                 STATE v. LAUHEAD
                                                  Cite as 306 Neb. 701




                                        State of Nebraska, appellee, v.
                                        Ronald L. Lauhead, appellant.
                                                    ___ N.W.2d ___

                                          Filed August 7, 2020.    No. S-19-687.

                 1. Mental Competency: Appeal and Error. The trial court’s determina-
                    tion of competency will not be disturbed unless there is insufficient
                    evidence to support the finding.
                 2. Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                 3. Trial: Pleas: Mental Competency. A person is competent to plead or
                    stand trial if he or she has the capacity to understand the nature and
                    object of the proceedings against him or her, to comprehend his or her
                    own condition in reference to such proceedings, and to make a ratio-
                    nal defense.
                 4. Judgments: Appeal and Error. An abuse of discretion occurs when a
                    trial court’s decision is based upon reasons that are untenable or unrea-
                    sonable or if its action is clearly against justice or conscience, reason,
                    and evidence.
                 5. 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.

                 Appeal from the District Court for Harlan County: Terri S.
               Harder, Judge. Affirmed.
                  Charles D. Brewster, of Anderson, Klein, Brewster & Brandt,
               for appellant.
                              - 702 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                       STATE v. LAUHEAD
                        Cite as 306 Neb. 701

   Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
  Freudenberg, J.
                        INTRODUCTION
   Ronald L. Lauhead was charged with five counts of first
degree sexual assault of a child and five counts of child abuse.
Before trial, he requested a competency evaluation pursu-
ant to Neb. Rev. Stat. § 29-1823 (Reissue 2016). Lauhead
was initially evaluated at the Lincoln Regional Center (the
LRC) and found to be incompetent to stand trial. The district
court ordered him to continue treatment at the LRC until his
competency to stand trial could be restored. Lauhead was
subsequently reevaluated by two doctors. Both doctors found
Lauhead to be competent and recommended that he be pro-
vided accommodations. The district court found Lauhead com-
petent to stand trial. Lauhead, subsequently, waived his right to
a jury trial, and a bench trial based upon stipulated facts was
held on the amended charges of one count of attempted first
degree sexual assault of a child and one count of child abuse.
Lauhead was found guilty and sentenced to incarceration for
terms of 20 to 22 years and 3 years, respectively, to be served
concurrently. Lauhead appeals.
                        BACKGROUND
   In November 2016, Lauhead was charged with five counts
of first degree sexual assault of a child and five counts of
child abuse. During the proceedings, Lauhead made a motion
to have a competency evaluation, which the district court
granted. Lauhead was evaluated in February 2017 by Mindy
Abel, who has a doctor’s degree in clinical psychology and a
law degree.
   Abel’s evaluation details the three different tests adminis-
tered and their results. To summarize, these tests showed that
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            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                            STATE v. LAUHEAD
                             Cite as 306 Neb. 701

Lauhead has a mental impairment and that his IQ places him
in the extremely low range of cognitive functioning. People
in this range show impairment in their abilities for abstract
thinking, executive functioning, short-term memory, and func-
tional use of academic skills. Abel’s report specifically related
the testing results to the criteria outlined in State v. Guatney. 1
Abel’s evaluation opined that Lauhead was not competent to
stand trial at that time.
   In March 2017, a hearing on the issue of competency was
held. Based on Abel’s report, the district court found that
Lauhead was mentally incompetent to stand trial, but there was
a substantial probability that he would become competent in
the foreseeable future. The district court ordered that Lauhead
be committed to the LRC for treatment until his competency
could be restored.
   Abel provided two subsequent reports to the district court.
In October 2017, Abel reported that Lauhead was incompetent
to be a witness against a codefendant in a related criminal mat-
ter. However, in December 2017, Abel reported that Lauhead
could be competent to stand trial if certain accommodations
were made. Abel described these accommodations as tak-
ing additional time and effort to explain the proceedings to
Lauhead and to ensure that he understands what is going on.
Abel opined that Lauhead had reached maximum benefit of the
competency restoration services provided at the LRC and that
Lauhead was now able to understand and assist in his defense
if provided the recommended accommodations. Abel indicated
that the burden to provide these accommodations would fall on
Lauhead’s counsel.
   A bifurcated hearing was held regarding Lauhead’s compe-
tence in January and May 2018. Abel’s report was provided
to the district court during the January portion of the hearing.
However, while the issue of competency was pending, the State
moved for an additional competency evaluation. The district
1
    State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                       STATE v. LAUHEAD
                        Cite as 306 Neb. 701

court authorized the State’s requested competency evaluation
by Theodore J. DeLaet, Ph.D. DeLaet conducted similar tests
to those administered by Abel and reviewed files provided
about Lauhead’s treatment at the LRC.
   During the May 2018 portion of the bifurcated competency
hearing, the court received DeLaet’s report over Lauhead’s
objections that DeLaet’s examination and report were cumula-
tive of Abel’s reports already admitted. Further, DeLaet testi-
fied that Lauhead met the minimum requirements to be con-
sidered competent to stand trial. He qualified his competency
opinion by providing detailed recommendations for accommo-
dations that would be essential for Lauhead to be able to under-
stand the nature and extent of the charges and the proceedings
against him. For example, during any questioning of Lauhead,
it would be necessary to use simple language, provide him
time to explain his responses, and cover one point at a time.
In June, based upon the evidence presented during the compe-
tency hearing, the district court found Lauhead competent to
stand trial.
   Lauhead made a motion to request accommodations in
preparation for trial. Lauhead also submitted a written brief
requesting a consultant to help identify what accommodations
would be needed at trial. The district court denied Lauhead’s
request for a disability consultant to be appointed.
   After several additional pretrial motions and hearings,
Lauhead agreed to resolve this matter through a bench trial
based upon a stipulated set of facts. In exchange for Lauhead’s
procedural concession, the State dismissed several charges. The
amended information contained one count of attempted first
degree sexual assault of a child and one count of child abuse.
Based upon its review of the parties stipulated set of facts, the
district court found Lauhead guilty of both counts.
   At sentencing, Lauhead argued that being incarcerated with
the Nebraska Department of Correctional Services would con-
stitute cruel and unusual punishment given Lauhead’s inability
to read and comprehend the rules of the corrections system.
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            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                            STATE v. LAUHEAD
                             Cite as 306 Neb. 701

The district court considered the sentencing factors raised by
Lauhead, including his disability, and sentenced him to incar-
ceration for terms of 20 to 22 years and 3 years, respectively,
to be served concurrently.
                 ASSIGNMENTS OF ERROR
   Lauhead argues, consolidated and renumbered, that the dis-
trict court erred by (1) finding him competent to stand trial,
(2) not identifying and providing accommodations to elimi-
nate his incompetency, (3) ordering excessive sentences, and
(4) sentencing him to the Nebraska Department of Correctional
Services when the evidence showed he was incapable of
properly managing or surviving the system managed by the
Nebraska Department of Correctional Services.
                  STANDARD OF REVIEW
   [1] The trial court’s determination of competency will not
be disturbed unless there is insufficient evidence to support
the finding. 2
   [2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 3
                           ANALYSIS
   Lauhead supports his assignments of error related to com­
petency by focusing on the evaluators’ references to accommo-
dations. The district court found that Lauhead was competent
to stand trial without placing any express conditions on that
determination. We find that there was sufficient evidence to
support the district court’s finding of competency. We also
find the district court did not abuse its discretion by sentenc-
ing Lauhead within the statutory ranges for his convictions on
both counts.
2
    State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
3
    State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
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             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                              STATE v. LAUHEAD
                               Cite as 306 Neb. 701

                           Competency
   [3] A person is competent to plead or stand trial if he or
she has the capacity to understand the nature and object of
the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a
rational defense. 4 As relevant to this case, § 29-1823(1) states
in part that “[i]f at any time prior to trial it appears that the
accused has become mentally incompetent to stand trial, such
disability may be called to the attention of the district court
by the county attorney, by the accused, or by any person for
the accused.” Lauhead’s disability was called to the attention
of the district court via a pretrial motion, and the district court
ordered Lauhead to be evaluated.
   The first evaluation was conducted by Abel. Abel’s report
indicated that Lauhead was not competent to stand trial. Based
upon Abel’s conclusion, the district court ordered Lauhead
to receive treatment at the LRC. After several months at the
LRC, Abel made a subsequent report to the district court that
Lauhead was now competent to stand trial and recommended
certain accommodations to ensure that Lauhead would under-
stand what was going on at trial. The State requested a second
evaluation that was conducted by DeLaet, who also concluded
that Lauhead was competent to stand trial and recommended
certain accommodations.
   Abel and DeLaet used substantially similar tests and looked
at the same patient history and information obtained from
Lauhead’s counseling sessions while at the LRC. They both
noted that although Lauhead scored in the extremely low cog-
nitive range, he has a basic routine and was able to work jobs
within the community. He was able to communicate socially,
drive a vehicle, and maintain gainful employment. In his ini-
tial interview with police, Lauhead denied the accusations and
indicated that he knew such actions were wrong.
   These facts support the finding of the district court that
Lauhead had the capacity to understand the nature and object
4
    State v. Garcia, supra note 2.
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            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                             STATE v. LAUHEAD
                              Cite as 306 Neb. 701

of the proceedings against him, to comprehend his own con-
dition in reference to such proceedings, and to make a ratio-
nal defense. 5 The district court considered the testimony and
reports submitted by both experts and found Lauhead compe-
tent to stand trial. The district court’s order also stated that it
would be mindful of the recommendations concerning the pace
of the trial and the accommodations needed if Lauhead were
to testify.
   Lauhead argues that he was only conditionally competent
and that the district court failed to identify and provide the
proper accommodations. This, however, is a misinterpretation
of the district court’s order. Although parts of the testimony of
Abel and DeLaet could be interpreted as finding Lauhead con-
ditionally competent, the district court order found Lauhead
unconditionally competent. The district court presumably made
such finding because Nebraska law has only one competency
standard. 6 A defendant is either competent or incompetent—
a finding of conditionally competent is not permitted under
Nebraska law.
   In addition, many of the accommodations suggested by both
experts were based on the scenario of a full adversarial trial in
which Lauhead may choose to testify. Such accommodations
were not required because Lauhead requested that the matter
be resolved through a bench trial based upon a stipulated set
of facts. The district court’s determination of competency will
not be disturbed unless there is insufficient evidence to support
the finding. 7 We find that the district court’s determination of
competency is supported by sufficient evidence.
                        Sentencing
  Lauhead’s remaining assignments of error assert that his
sentences were excessive and that sentencing Lauhead to the
5
    See id.
6
    See State v. Guatney, supra note 1.
7
    State v. Garcia, supra note 2.
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             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                             STATE v. LAUHEAD
                              Cite as 306 Neb. 701

Nebraska Department of Correctional Services was a viola-
tion of his constitutional rights. We find that the district court
did not abuse its discretion in sentencing Lauhead within the
statutory guidelines and that because Lauhead was properly
found competent, his sentences do not violate his constitu-
tional rights.
   [4,5] Lauhead first contends that the sentences were exces-
sive because the district court did not properly consider all of
the factors, including Lauhead’s mentality. An appellate court
will not disturb a sentence imposed within the statutory limits
absent an abuse of discretion by the trial court. 8 An abuse of
discretion occurs when a trial court’s decision is based upon
reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence. 9
When imposing a sentence, a sentencing judge should consider
the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (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. 10
   The sentencing order indicates that the district court con­
sidered the appropriate factors, including the evidence pre-
sented concerning Lauhead’s mental abilities. The district court
found that Lauhead is not a suitable candidate for probation
and that placing him on probation would promote a disrespect
for the law. There is nothing in the record to demonstrate that
the district court considered improper factors when sentencing
Lauhead, and he was sentenced within the sentencing ranges
for the offenses of which he was convicted. 11 Accordingly,
we find the district court did not abuse its discretion in
 8
     State v. Leahy, supra note 3.
 9
     See State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015).
10
     State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
11
     See Neb. Rev. Stat. §§ 28-105 and 28-201 (Reissue 2016).
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          Nebraska Supreme Court Advance Sheets
                   306 Nebraska Reports
                        STATE v. LAUHEAD
                         Cite as 306 Neb. 701

sentencing Lauhead to incarceration for terms of 20 to 22
years and 3 years to be served concurrently.
   Lauhead next asserts he was sentenced to incarceration in
violation of his constitutional rights because he was incompe-
tent to stand trial. Because we find the district court did not err
in determining that Lauhead was competent to stand trial, this
argument is without merit.
                        CONCLUSION
   The reports and testimony of the two doctors who evalu-
ated Lauhead provide sufficient evidence to support a find-
ing that Lauhead was competent to stand trial. His sentences
were within the statutory sentencing range, and Lauhead failed
to show that the district court considered improper factors
or abused its discretion. The judgment of the district court
is affirmed.
                                                  Affirmed.
