Petition for further review from the Nebraska Court of Appeals, Miller-Lerman, Chief Judge, and Sievers and Mues, Judges, on appeal thereto from the District Court for Cheyenne County, John D. Knapp, Judge. Judgment of Court of Appeals reversed and remanded with directions.
Paul B. Schaub, Cheyenne County Attorney, for appellant.
James R. Mowbray, of Nebraska Commission on Public Advocacy, and, on brief, Robin W. Hadfield for appellee.
STATE V. HARRISON
NO. S-97-1152 - filed January 22, 1999.
1. Sentences: Probation and Parole: Appeal and Error. When the State appeals from a sentence, contending that it is excessively lenient, an appellate court reviews the record for an abuse of discretion, and a grant of probation will not be disturbed unless there has been an abuse of discretion by the sentencing court.
2. Sentences: Appeal and Error. It is not the function of an appellate court to conduct a de novo review of the record to determine whether a sentence is appropriate.
3. Sentences. The sentencing court is not limited in its discretion to any mathematically applied set of factors. 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.
4. 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. If the reasons given by the court for its action are clearly untenable or unreasonable, if its action clearly amounts to a denial of justice, if clearly against justice or conscience, reason, and evidence, it has abused its discretion.
5. Sentences: Appeal and Error. When applying the criteria enumerated in Neb. Rev. Stat. § 29-2322 (Reissue 1995), which authorizes an increase of sentence on appeal, the inquiry is whether the trial court's decision was clearly untenable, unfairly deprived a litigant of a substantial right, and denied a just result. Thus, so long as the trial court's sentence is within the statutorily prescribed limits, is supported by competent evidence, and is not based on irrelevant considerations, an appellate court cannot say that a trial court has abused its discretion. Such a sentence is not untenable, does not unfairly deprive a litigant of a substantial right, and does not deny a just result.
6. Sentences: Probation and Parole: Appeal and Error. The trial court has the opportunity to observe the defendant throughout the judicial process and is in a better position than an appellate court to determine whether the defendant is suited for probation. Moreover, a sentencing judge has broad discretion as to the source and type of information, including personal observations, which may be used as assistance in determining the kind and extent of the punishment to be imposed.
7. ____ : ____ :____ . In determining where probation may be imposed, an appellate court must consider Neb. Rev. Stat. § 29-2260 (Reissue 1995), whether reviewing a sentence for excessiveness, pursuant to Neb. Rev. Stat. § 29-2308 (Reissue 1995), or for leniency under Neb. Rev. Stat. § 29-2322 (Reissue 1995).
8. Sentences. A sentence should fit the offender and not merely the crime.
9. ____. A sentence not involving confinement is to be preferred to a sentence involving partial or total confinement in the absence of affirmative reasons to the contrary.
10. Sentences: Probation and Parole. Justice may certainly be served by a sentence of probation. Whether justice is so served is a matter that is, in the first instance, properly left to the trial court.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ, and WITTHOFF, D.J.
The appellee, Verma J. Harrison, was convicted of two counts of motor vehicle homicide and sentenced to consecutive terms of probation by the district court. The Nebraska Court of Appeals reversed Harrison's sentences as excessively lenient, pursuant to Neb. Rev. Stat. § 29-2322 (Reissue 1995), and imposed consecutive sentences of imprisonment. State v. Harrison, 7 Neb. App. 350, 583 N.W.2d 62 (1998). We reverse the judgment of the Court of Appeals, concluding that the trial court did not abuse its discretion in imposing probation.
Harrison was driving a GMC van on Interstate 80, near Sidney, Nebraska, at approximately 7:30 a.m. when the van she was driving collided with a Chrysler Town and Country van being driven by Joseph Nicolich, age 65. Joseph Nicolich's wife, Janice, age 60, was in the front passenger seat, and their granddaughter, Robyn Griffiths, age 11, was in the rear seat. The impact of the collision killed Robyn and Janice.
A Nebraska State Patrol officer determined that Harrison was intoxicated at the time of the collision. Harrison stated that she had been drinking in Ogallala until about 3 a.m., had slept a couple of hours in a motel, and was in a hurry to get to Cheyenne, Wyoming. Six motels located at the Ogallala interchange were contacted, and none had any record of Harrison's being registered on the relevant date.
Joseph Nicolich stated that at the time of the collision, he was traveling on I-80 and had passed a motorist who was stopped on the side of the road. He decided to pull over to offer assistance. He had pulled onto the shoulder and slowed down to approximately 25 miles per hour, when his vehicle was struck in the rear by Harrison's vehicle. According to an accident reconstructionist, Harrison was driving on the shoulder at the time of impact at a speed of approximately 65 to 75 miles per hour. It appeared that Harrison made no attempt to avoid the collision. Harrison stated that she thought she had fallen asleep at the wheel.
Harrison was charged with two counts of motor vehicle homicide, pursuant to Neb. Rev. Stat. § 28-306(l) (Reissue 1995), for allegedly causing the deaths of Janice and Robyn, unintentionally, while engaged in the operation of a motor vehicle. Harrison pled guilty in the district court to both counts after being informed of her rights by the court. The State recited the factual basis for the charges, which Harrison admitted. The trial court found that Harrison had freely, intelligently, and voluntarily entered each plea and accepted them. The trial court then ordered a presentence investigation.
Because we are faced with a sentencing issue, we will discuss the facts contained in the presentence report and those presented at the sentencing hearing in some detail.
The presentence report indicates that Harrison's life had been filled with abuse. Her father, who had been a uranium miner, died from lung cancer in 1971. After her father died, her mother had an affair with Harrison's married uncle, who also molested Harrison and her sister. The community later discovered her mother's adulterous relationship, and their family became outcasts. Harrison married an alcoholic in 1988 when she became pregnant, and she was divorced in 1994. Two of Harrison's children were from this marriage. The other child was the result of a relationship with a man who physically abused Harrison. Harrison was 32 years old at the time of sentencing.
Harrison was convicted of public intoxication in 1994 and driving under the influence of alcohol in 1995. Harrison participated in an 8-hour alcohol abuse course as a result of her 1995 conviction, but did not complete it. She had been fined for child neglect in 1992, which was also attributable to alcohol. Harrison began drinking regularly at age 15 and was drinking twice a week by her senior year in high school.
The presentence report contained numerous letters, some in support of and some in opposition to Harrison's receiving the maximum sentence. The letters in support of Harrison's receiving the maximum sentence were adequately characterized by the trial court during the pronouncement of sentence, which statement is set forth below. The letters in support of Harrison's receiving probation, particularly those from the director of the Laramie Head Start Program, the principal of the elementary school attended by Harrison's children, the pastor of Harrison's church, and a counselor and instructor for the AAA DUI Offender Program, indicated that Harrison was a responsible parent, was heavily involved in the community, and was making significant progress toward conquering her alcoholism. According to these letters, Harrison's attempt at rehabilitation was sincere and was likely to be successful.
At the sentencing hearing, the trial court asked Harrison whether she had anything she wanted to say. Harrison stated:
- Yes, I would like to tell everybody in this courtroom today and say that there is [sic] no words for the depth of the remorse that I feel. The depth of the remorse that I feel, and I will never forget and I won't, Your Honor, for the rest of my life. I have learned so many valuable lessons in this whole thing. For the rest of my life I dedicate myself to my sobriety and then to helping others who are headed down the same way, because I never intended to hurt anybody.
- I would like to say that I hope Verma Harrison receives the maximum jail time or prison time with no good time off for good behavior or probation.
. . . .
I would think that now Mrs. Harrison is trying to show the authorities how good she can morally and religiously be. I feel she would shake hands or marry the devil if it meant her getting off the charges against her.
- October 7, 1997
Dear Justice Knapp,
My name is Cindy Griffiths, my husband's name is Bill Griffiths. We are the parents of Robyn Griffiths (DOB 12/12/84) and the daughter and son-in-law of Janice Nicolich. Robyn and my mother, Janice, were brought to their deaths while driving through Sidney on June 28, 1996. My father, Joe Nicolich, was there too, as he was the driver.
I am writing to you today in regards to Verma Harrison, who was driving the vehicle that crashed into my parents' car on I80. I understand her sentencing date is approaching quickly, and we wanted to let you know our thoughts.
It's a little hard for me to know where to begin. To try to describe the agony of losing our precious daughter and mother is not something we can easily do, for the pain runs so very deep. It's beyond anything we've ever experienced. It's as though a major tidal wave -- a tsunami--has crashed down upon us and sennt us tumbling and spinning in blackness -- agonizing blackness. I described it at one point to someone as being tortured unceasingly without the repose of death. I prayed and asked God a number of times to just please, please take my entire family in our sleep so we wouldn't have to live the nightmare anymore. Obviously my prayers have gone unanswered -- this time -- and for good reasons, I'm confident. My daughter, Robyn, who was born on my birthday nearly 13 years ago, is the second of six children and the first of two girls (my youngest, now five yrs. old, is a girl). She was -- it is difficult to write "was" when referring to her -- but she was a very special young lady who graced the lives of many with her gentle, caring spirit. She was mature for her 11 1/2 years: helping with household duties and with caring for the little ones. She'd intervene when her brothers didn't get along and she helped to create an atmosphere of peace. She'd offer comfort to a sibling who felt misunderstood. And she'd be found every day playing mom to her baby sister (who was three at time we lost Robyn) by playing with her, reading her stories and the like. In our family of six children we teach the older ones to help with and care for the younger children. Robyn rarely complained. In fact, there was little else she preferred over spending time with her baby sister. All of her siblings loved her dearly, so naturally they suffer -- unnaturally. We suffer because we love. I've told them this. It hurts so much because we loved so much, and we still love so much. The shock of my daughter's sudden and violent death has reverberated throughout our families and our local and church communities. Robyn had several close friendships, but we've learned that a large number of girls considered her to be their "best" friend. She had a very loving way about her that caused her to seek to include others, especially the ones that were shy or on the peripheral. And Robyn and I were very close. I am not going to describe my relationship with her except to say that I don't think it gets any better than what we had. I have to admit that I am tempted to go on and on about this child because I cannot see her sweet freckled face any longer. My eyes are now denied their maternal right to watch the sunlight dance on the blonde highlights of her brown hair, or the wind tease her flowing locks. I cannot feel her in my arms any longer, yet I remember her soft skin and wonderful hugs. I do not hear her playing with her brothers and sister, and our piano seems to sit in a sullen silence, wondering why her gentle songs have ceased. Where other moms can talk to their 12 year old daughters, I now can only talk about my memories of mine. And then there's my mother. We were very close. She was not just my mother, but my friend. Always, it seemed, giving, loving, and laughing. She was wonderful to me and my brothers and our children. She had many interests and even had a special "something" for Native Americans. She loved their art (definitely their jewelry) and sympathized with their history. I find it interesting that Verma Harrison is 100% Native American. Well, I felt the need to share these things. Now, I want to focus on Ms. Harrison. Although we despise what has happened at the hands of Verma Harrison, we do not despise the person, Verma Harrison. I cannot remember if it was the first or second day when we learned the driver had been intoxicated with a blood alcohol level of 1.9, but I remember thinking, "My God, what happened to this woman that left her with no sense of self-worth, self-respect, self esteem? What happened in her life that caused her to think so irrationally and behave so irresponsibly? What has driven her?" I felt from the beginning that she probably had a lot of problems and needed a lot of help. I knew I was going to write to her to see if I could help. Knowing that God hears when we call upon Him in truth, I fasted and prayed for three days asking God to give me insight into Ms. Harrison, so that my letter would be effective. Early in November of '96 I wrote to her to tell her that I didn't hate her, but wanted to help her. I explained to her my reasons for my perspective and my forgiveness; for they are found in the Bible and are the fruits of a relationship with the Lord, Jesus Christ, and by faith in His word. Ms. Harrison wrote back to me -- to all of our family. She wrote a very long letter. A letter which confirmed my impressions of her while writing my first letter to her. Indeed, she suffered much abuse at the hands of irresponsible adults during her growing up years, including sexual and alcohol-influenced abuse. Now, I am a believer that we need to take responsibility for our actions. We need to make choices for good or for evil, for life or for death, in all our daily actions. There are many people, I think, who love to blame their parents, their siblings, their teachers, babysitters or the lack of enough candy in their Christmas stockings for their depressions and woes in life. I've been one of them. These folks need to get a grip -- it's true -- and start making lemonade with those lemons. However, they need to be loved and helped along the way to hopefully reach that point. And then they still need to be loved. And I believe love never fails. Some have said we are foolish for taking this stand. Some say she's carefully scheming with her lawyer to pull our heartstrings for the very purpose of my writing these things to you. Yet I say 1) it was I who wrote to her first, 2) we've made contact twice with her pastor. She's been in attendance since the crash at a local church, and we've contacted the pastor to discuss her actions and faith, and 3) even if her story weren't true, I would still have the satisfaction of knowing that I did the right thing in case it were true. In her letters, I've received and sent several now, she has expressed remorse for what she's done. I think it is not only remorse for the consequences of whatever might be coming to her, but remorse over the injury she has caused this family. We believe it is real. We believe she is waking up and trying to make steps towards a better way of living. As I stated previously, we've made contact with her pastor who confirmed what she had written to us and more. What we've learned is that she's been in counseling 2 x per week at the minimum, she's been in an intensive discipleship/rehab program with a group called Overcomers Outreach, which is an offshoot of their church, and she has been actively involved in reaching out to others who have addictions, telling them of her life, telling them what happened on June 28, 1996, telling them of love and forgiveness and healing and hope. We don't want any of this to end! She wrote and told me how she was about to graduate college with a degree in business, but wants to change that so she can counsel women. She believes she has something to give now. We want her to have the chance to give it away. We've been warned that those awaiting sentencing are on their best behavior because they are very scared. And while we can believe that, we still have reason to believe that Ms. Harrison's rehabilitation is genuine, and that her desire to counsel other women who are suffering with the abuses she's received or inflicted upon herself, is real, too. I've attended several MADD meetings. They did not seem to like my point of view, in fact some began to get argumentative. When I suggested that if she's telling the truth, she may be able to reach other alcoholics before they kill someone's loved one, the folks at the meeting saw that maybe some good could come out of it. Justice Knapp, there's been an awful lot of pain and suffering: my husband and me and our children, my brothers and their families, my dear father, who's been a very broken, hurting man, and the many, many others in Janice's and Robyn's spheres of influence. If any good could come of this -- we are all for it. We want to see Ms. Harrison have the chance to make good with her life and the lives of her children, and we want to see her reach out to help heal those hurting women she calls "my people." I don't claim to know all she needs right now. She broke the laws of our land and I don't know what's in store for her because of this. We want you to know that we consider her an ally and not an enemy if she is going to pursue what is good and right. If she does this, she'll be fighting the true enemy with us -- which is evil itself. And that battle is won one heart at a time. Let her influence others so that perhaps even one other mother and father, daughter & son-in-law will not have to weep the bitter tears we've wept. Thank you very much for letting us have our say and for considering our thoughts. Respectfully, Cindy Griffiths [and] Bill Griffiths.