State v. Antoniak

744 N.W.2d 508, 16 Neb. Ct. App. 445
CourtNebraska Court of Appeals
DecidedFebruary 19, 2008
DocketA-07-457
StatusPublished
Cited by60 cases

This text of 744 N.W.2d 508 (State v. Antoniak) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Antoniak, 744 N.W.2d 508, 16 Neb. Ct. App. 445 (Neb. Ct. App. 2008).

Opinion

744 N.W.2d 508 (2008)
16 Neb. App. 445

STATE of Nebraska, Appellant
v.
Scott A. ANTONIAK, Appellee.

No. A-07-457.

Court of Appeals of Nebraska.

February 19, 2008.

*509 Jeffrey J. Lux, Deputy Douglas County Attorney, for appellant.

Emil M. Fabian, of Fabian & Thielen, Omaha, for appellee.

INBODY, Chief Judge, and CARLSON and CASSEL, Judges.

CASSEL, Judge.

INTRODUCTION

Following a bench trial, the district court for Douglas County convicted Scott A. Antoniak of first degree sexual assault and sentenced Antoniak to 5 years' probation. The State of Nebraska appeals the sentence imposed on Antoniak as excessively lenient. Finding no abuse of discretion in the sentence of probation, we affirm the sentence of the district court.

BACKGROUND

On July 10, 2005, while Antoniak was on duty and dressed in his uniform as an *510 Omaha police officer, he approached the victim, a prostitute. Antoniak ran the victim's name for outstanding warrants, discovered an active warrant for her arrest, and had the victim sit in the front seat of the police cruiser. Antoniak drove the cruiser a short distance and told the victim that she could point out the drug dealers, go to jail, or perform oral sex on him. The victim chose the last option and preserved some of Antoniak's semen. The State charged Antoniak with first degree sexual assault. Following a bench trial, the district court convicted Antoniak of the charge and sentenced him to 5 years' probation.

Pursuant to Neb.Rev.Stat. §§ 29-2320 and 29-2321 (Cum. Supp. 2006), the State requested and received the Attorney. General's approval to appeal the sentence as excessively lenient.

ASSIGNMENT OF ERROR

The State alleges that the district court abused its discretion in imposing an excessively lenient sentence.

STANDARD OF REVIEW

Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion. State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008). 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

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. State v. Thompson, 15 Neb.App. 764, 735 N.W.2d 818 (2007). As stated above, the district court convicted Antoniak of first degree sexual assault and imposed a sentence of 5 years' probation. First degree sexual assault is a Class II felony, which is punishable by 1 to 50 years' imprisonment. See Neb.Rev.Stat. §§ 28-105(1) (Cum. Supp. 2006) and 28-319(2) (Reissue 1995). Under Neb.Rev.Stat. § 29-2260 (Reissue 1995), a court may withhold a 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
(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;
*511 (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.

In our review to determine whether the sentence was excessively lenient, we consider factors similar to those listed above under Neb.Rev.Stat. § 29-2322 (Reissue 1995), which provides in pertinent part:

[T]he appellate court, upon a review of the record, shall determine whether the sentence imposed is excessively lenient, having regard for:
(1) The nature and circumstances of the offense;
(2) The history and characteristics of the defendant;
(3) The need for the sentence imposed:
(a) To afford adequate deterrence to criminal conduct;
(b) To protect the public from further crimes of the defendant;
(c) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and
(4) Any other matters appearing in the record which the appellate court deems pertinent.

At the time of sentencing, Antoniak was 29 years old. He was living with his wife and child and another child was expected in May 2007. He had obtained a bachelor's degree in criminal justice and had worked for the Omaha Police Department from November 2001 until he was fired in August 2005. Since that time, he had been employed as a laborer and then as a warehouse manager. Antoniak's criminal history consisted of a stop sign violation in 2002 for which he was not prosecuted.

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Cite This Page — Counsel Stack

Bluebook (online)
744 N.W.2d 508, 16 Neb. Ct. App. 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-antoniak-nebctapp-2008.