OPINION OF THE SUPREME COURT OF NEBRASKA
State of Nebraska, Appellant,
v.
Verma J. Harrison, Appellee.
State v. Harrison
Filed January 22, 1999. No. S-97-1152.
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.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ, and WITTHOFF, D.J.
CONNOLLY, 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.
COLLISION
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.
ARRAIGNMENT
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.
SENTENCING
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.
Joseph Nicolich testified on behalf of the State:
State of Nebraska, Appellant,
v.
Verma J. Harrison, Appellee.
State v. Harrison
Filed January 22, 1999. No. S-97-1152.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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).
- Sentences. A sentence should fit the offender and not merely the crime.
- 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.
- 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.
CONNOLLY, 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.
BACKGROUND
COLLISION
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.
ARRAIGNMENT
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.
SENTENCING
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.
Joseph Nicolich testified on behalf of the State:
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.The trial court also had before it a letter handwritten by Cindy Griffiths, Robyn's mother, at the mother's request:
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 sen...
