State v. Menard

259 N.W.2d 479, 199 Neb. 456, 1977 Neb. LEXIS 830

• Court: Nebraska Supreme Court
• Decided: November 16, 1977
• Docket: 41237 and 41238
• Status: Published

Opinions

Per Curiam.

The defendant entered pleas of guilty to larceny from the person and third offense driving while intoxicated. The trial court imposed concurrent sentences of 1 to 5 and 1 to 3 years in the Nebraska Penal and Correctional Complex. Defendant’s sole contention on appeal is that the sentences ,are excessive and he should be placed on probation. We affirm.

Defendant was born of American Indian heritage. His parents had drinking problems and from age 11 until he was 17 or 18 he resided at the Boys’ Training School in Kearney.

Defendant has five previous felony convictions and sentences in Nebraska for which he served time. These include auto theft, burglary, uttering a forged instrument, and breaking and entering. Defendant has had numerous arrests including offenses for grand larceny, assault, carrying a concealed weapon, robbery, and larceny. There are also numerous drunk offenses on his record.

At the time the present offenses were committed, defendant was a student with a 3.4 grade average at the University of Nebraska. He also was a graduate instructor in the department of literature, teaching the Lakota language. Prior to committing the present offenses, defendant had begun a rehabilitation program which included attendance at Alcoholics Anonymous and other programs.

During the past few years defendant has been active in various cultural affairs at the University. Numerous supportive letters written on defendant’s behalf are contained in the presentence investigation report.

The record shows that the trial court evaluated defendant’s past and present behavior in light of protection of society and the rehabilitation of the defendant. The court considered the fact that defendant had attempted alcoholic rehabilitation in the past and had failed. Noting that the State had dropped the habitual criminal charges, which would have resulted in a minimum term of 10 years, the court found that the defendant had received mercy and understanding.

Section 28-505, R. R. S. 1943, provides that the punishment for larceny from the person is imprisonment in the Nebraska Penal and Correctional Complex for not less than 1 nor more than 7 years. Section 39-669.07, R. R. S. 1943, provides for imprisonment in the Nebraska Penal and Correctional Complex for not less than 1 nor more than 3 years for the third offense of driving while intoxicated. Defendant was sentenced to 1 to 5 years for larceny from the person and 1 to 3 years for the third offense of driving while intoxicated. Such sentences are within the statutory limits and will not be disturbed on appeal unless there is an abuse of discretion. State v. Kolzow, 195 Neb. 93, 236 N. W. 2d 837.

In light of defendant’s past criminal behavior, it cannot be said that the court abused its discretion. Absent such abuse the sentence is affirmed.

Affirmed.