Opinion
No. 41567.
Filed November 9, 1977.
Appeal from the District Court for Lancaster County: WILLIAM C. HASTINGS, Judge. Affirmed.
T. Clement Gaughan and Dennis G. Carlson, for appellant.
Paul L. Douglas, Attorney General, and Harold Mosher, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
The defendant was originally charged with two counts of burglary and one count of motor vehicle theft. Pursuant to a plea bargain the information was amended to charge burglary in the first count and unlawful use of an automobile, a misdemeanor, in the second count. A misdemeanor charge of possession of marijuana was also dismissed. The defendant pleaded guilty to the amended information and was sentenced to imprisonment for 15 to 30 months on the first count and to 90 days in jail on the second count and fined $100. The sentences were to be served concurrently, but consecutively to sentences the defendant was then serving. The defendant has appealed and contends the sentences imposed were excessive.
The offenses involved in this case were committed while the defendant was out on bail for earlier charges of defrauding an innkeeper and second offense petit larceny. He failed to appear for sentencing on the prior offenses and was apprehended in Wichita, Kansas, on a bench warrant.
The defendant is 18 years of age and has a 7th grade education. He has a long history of juvenile offenses commencing with burglary at the age of 13. The defendant does not contend that he was a proper subject for probation, but suggests that the sentence on the first count should be reduced to 1 years imprisonment. In view of the defendant's record and the serious nature of the offenses committed, the sentences imposed were not excessive.
The defendant also objects to the sentence on the first count because of his age. The defendant argues that the effect of sending a young man to the penal complex could be devastating because of the abuse he probably will receive from the older inmates. The argument is not without force and has some factual support in the presentence investigation report.
The argument illustrates a problem that faces each trial judge in this state who must impose a sentence of imprisonment upon a youthful offender. So far as the disposition of this appeal is concerned the answer to the defendant's argument is that any problems which may exist in the penal institutions of this state cannot be solved by refusing to sentence prisoners to incarceration where the facts and circumstances of the case indicate that imprisonment is the proper sentence.
Age is a proper matter to be considered, but it is not a controlling circumstance in this case. The defendant is not a first offender and has demonstrated that he has no respect for law or the rights of others. Protection of the public requires that the defendant be imprisoned.
The judgment of the District Court is affirmed.
AFFIRMED.