Opinion
No. A-12-459
12-04-2012
STATE OF NEBRASKA, APPELLEE, v. DAVID C. WATERS, APPELLANT.
James R. Mowbray and Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant. Jon Bruning, Attorney General, George R. Love, and Siobhan E. Duffy, Senior Certified Law Student, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Cheyenne County: DEREK C. WEIMER, Judge. Affirmed.
James R. Mowbray and Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, George R. Love, and Siobhan E. Duffy, Senior Certified Law Student, for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
David C. Waters appeals from his plea-based convictions for false imprisonment, a Class IIIA felony, and third degree assault, a Class I misdemeanor. Waters was sentenced to 30 to 60 months' imprisonment for the Class IIIA felony and 6 months' imprisonment for the Class I misdemeanor, to be served consecutively. Waters was also ordered to pay $1,500 restitution in monthly payments commencing 1 month following his release from imprisonment in this case with payments not to exceed 5 years. On appeal, Waters asserts that the district court erred by imposing an excessive sentence on the felony conviction and in ordering restitution, because he lacks the ability to pay restitution. For the reasons set forth herein, we affirm.
BACKGROUND
Waters was originally charged with first degree assault, a Class II felony, and second degree assault, a Class III felony. The parties entered into a written plea agreement in which Waters agreed to plead guilty or no contest to the reduced charges of first degree false imprisonment, a Class IIIA felony, and third degree assault, a Class I misdemeanor. Neb. Rev. Stat. § 28-314 (Reissue 2008); Neb. Rev. Stat. § 28-310 (Reissue 2008). In exchange, the State agreed to not file any additional charges against Waters based upon any facts known to the State.
A plea hearing was held before the district court on February 16, 2012. Waters pled no contest to the charges of the amended information after being advised of his rights by the court. The State provided the factual basis for the charges, showing that on or about October 11, 2011, police officers were called to a motel in Sidney, Nebraska, after receiving a complaint that there was blood on the floor of one of the motel rooms. The investigation revealed that Ian Rodriguez had been assaulted in the room.
Police first suspected Diana Liges, who admitted to hitting Rodriguez with a bottle, but police determined that Liges gave false information in an attempt to hinder the investigation against Waters. Chris Barnes told police that Rodriguez pushed Waters and that Waters then hit Rodriguez approximately four times. Barnes tried to get between the two, but Waters then kicked Rodriguez several times in the head and/or body. According to Waters, he entered the motel room and saw Rodriguez and Liges fighting. Waters then hit Rodriguez approximately four times, and while Rodriguez was on the floor, Waters and Liges kicked Rodriguez in the head five or six times. Waters and Barnes dragged Rodriguez to the ground level of the motel, but they fell at the bottom of the stairs because they were intoxicated. A doctor who examined Rodriguez stated that Rodriguez was subjected to a substantial risk of great bodily injury. The charge of third degree assault resulted from an incident while Waters was in custody, is not at issue in this appeal, and will not be discussed further.
After considering the factual basis for the charges and finding that Waters' pleas were freely, voluntarily, knowingly, and intelligently given, the district court accepted the pleas and found Waters guilty of first degree false imprisonment and third degree assault. The court ordered a presentence investigation and set the matter for sentencing.
On May 8, 2012, the district court sentenced Waters to 30 to 60 months' imprisonment for the false imprisonment conviction, to run consecutively to a sentence of 6 months' imprisonment for the assault conviction. Upon sentencing, the court noted that it considered several factors, including the presentence investigation report; Waters' prior record, educational history, and work history; whether Waters was provoked or had any excuse or justification for the offense; Waters' attitude during the proceedings; whether Waters was likely to reoffend; and the testing done by the probation office. The court noted that the presentence investigation report revealed that there may be an active warrant for Waters' arrest out of Colorado, which warrant was possibly based upon charges listed in Waters' presentence investigation report that had unknown disposition.
Also on May 8, 2012, evidence was presented relating to restitution. The State offered into evidence documents received by Rodriguez from his insurance company detailing the amount charged by the hospital, the amount paid by insurance, and the amount for which Rodriguez was responsible. The exhibits were received into evidence by the court without objection. Rodriguez testified about his injuries, his belief that Waters was the cause of his injuries, and the medical attention he received as a result. The full amount of Rodriguez' medical bills totaled $17,058, and Rodriguez' share for which he was responsible was $6,306. Rodriguez applied for assistance through the "Victim Reparations Fund," but he had not yet been told if he would receive assistance. Rodriguez asked the court to enter a restitution order.
Waters testified that he is presently unemployed due to being in jail, that he prepared a financial statement claiming indigency for appointment of counsel, that he owns no real or personal property, and that he does not have any bank accounts or money. Waters testified that if he were released from custody and placed on probation, he would be able to obtain employment with his mother's catering business. Waters previously worked for a roofing company, for his brother-in-law who is a contractor in Colorado, and as a cook while he was incarcerated. Waters has never been fired from employment and is capable of working. Waters indicated that if he were placed on probation, he would be willing and able to pay $25 per month in restitution, but that he would have no ability to pay restitution if he remains incarcerated.
The district court ordered Waters to pay restitution of $1,500 to Rodriguez in monthly payments, commencing 1 month following his release from imprisonment in this case. Payments were not to exceed 5 years.
ASSIGNMENTS OF ERROR
Waters asserts that the district court abused its discretion in imposing an excessive sentence on the felony conviction because (1) Waters was sentenced to a longer term of imprisonment than his codefendant and (2) the court failed to consider Waters' pending charges in Colorado and lack of financial means to pay restitution upon his release.
STANDARD OF REVIEW
Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2012).
ANALYSIS
Sentence for First Degree False Imprisonment.
Waters asserts that the sentence imposed for the first degree false imprisonment conviction of 30 to 60 months' imprisonment was excessive. First degree false imprisonment is a Class IIIA felony which is punishable by up to 5 years' imprisonment, a $10,000 fine, or both. § 28-314; Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2012). Although Waters acknowledges that the sentence imposed was within the statutory limit, he asserts that the trial court abused its discretion in sentencing him to a "longer term of imprisonment and fine than the sentence imposed upon his co-defendant."
When imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education and experience, social and cultural background, past criminal record, and motivation for the offense, as well as the nature of the offense and the violence involved in the commission of the crime. State v. Howard, supra. In imposing a sentence, the sentencing court is not limited to any mathematically applied set of factors. Id. 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. Id.
The issue in reviewing a sentence is whether the defendant in question received an appropriate sentence, not whether someone else received a lesser one. State v. Spotted Elk, 227 Neb. 869, 420 N.W.2d 707 (1988). Similarly, the mere fact that a defendant's sentence differs from that which has been issued to a codefendant in the same court does not make the imposition of the defendant's sentence an abuse of discretion. Id. The record suggests that Liges was convicted of a misdemeanor charge of providing false information to law enforcement; however, there is nothing in the record that indicates what her sentence was. Clearly, Liges was not convicted of the same offense as Waters. Even assuming that Liges' sentence was less than Waters' false imprisonment sentence, since Liges was convicted of a misdemeanor as opposed to a felony, we do not find based upon this record that the alleged disparity in sentences is an abuse of discretion.
Further, the record in this case shows no abuse of discretion in the sentence of imprisonment ordered. Waters was 23 years old at the time of the sentencing, had received a diploma through the GED program, and was unemployed due to being incarcerated. His criminal history began while he was a juvenile when he committed a burglary and was sentenced to 2 years at a juvenile correctional facility in Colorado. His criminal history also includes convictions for carrying a concealed weapon and parole violation. There were three additional charges in Colorado for which dispositions were unknown. The presentence investigation report shows that Waters has a problem with alcohol, scoring in the maximum risk range on that category, as well as in the violence category, on a risk assessment. The victim in this case sustained serious injuries as a result of Waters' actions. The district court took all of the appropriate factors into consideration in imposing sentence. We find no abuse of discretion in the sentence of imprisonment.
Restitution.
Waters also asserts that the district court erred in ordering him to pay restitution in the amount of $1,500 in monthly installments beginning 1 month after being released from incarceration, with payments not to exceed 5 years.
Neb. Rev. Stat. § 29-2280 et seq. (Reissue 2008) vests trial courts with the authority to order restitution for actual damages sustained by the victim of a crime for which the defendant is convicted. State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000); State v. Mick, 19 Neb. App. 521, 808 N.W.2d 663 (2012). In imposing restitution, § 29-2281 provides, in part, the following parameters:
To determine the amount of restitution, the court may hold a hearing at the time of sentencing. The amount of restitution shall be based on the actual damages sustained by the victim and shall be supported by evidence which shall become a part of the court record. The court shall consider the defendant's earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the obligation to the victim.
Pursuant to § 29-2281, before restitution can be properly ordered, the trial court must consider: (1) whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying. State v. Holecek, supra. The language of § 29-2281 and the case law require appropriate sworn documentation to support both the actual damages sustained by the victim and the defendant's ability to pay. State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999). Finally, § 29-2281 provides that the court may order that restitution be made immediately, in specified installments, or within a specified period of time not to exceed 5 years after the date of judgment or defendant's final release date from imprisonment, whichever is later.
The record contains evidence of the actual damages sustained by Rodriguez as well as evidence concerning Waters' ability to pay restitution. The district court considered all of the required factors and specifically weighed the question of whether Waters had the ability to pay restitution. The court noted that Waters was employed and employable prior to his arrest and acknowledged that Waters would not have the ability to pay while he was in custody. The court also recognized that Waters did not have the ability to pay the full amount of medical bills not covered by Rodriguez' insurance. Waters was ordered to pay only $1,500 of the $6,306 out-of-pocket medical expenses incurred by Rodriguez. Payment of the restitution is deferred until after Waters is released from prison.
Waters argues that he will "most likely" be extradited to Colorado after his release from his Nebraska sentence, so he will not have the ability to derive income to begin making the payments. While there is some mention in the presentence investigation report that there is an active warrant in Colorado for Waters' arrest, there is no evidence that Waters will be extradited when he is released from custody or that he will be imprisoned in Colorado making him unable to pay restitution at that time. In fact, Waters did not address this issue in his testimony at the restitution hearing or in arguments to the district court. Even if this extradition comes to pass, there is a procedure provided to adjust or waive payment of restitution. See § 29-2285.
In summary, we find that the district court properly considered Waters' ability to pay restitution and did not err in ordering restitution.
CONCLUSION
Waters' sentence on first degree false imprisonment was not excessive, and the district court did not abuse its discretion in ordering restitution. We affirm the judgment of the district court in all respects.
AFFIRMED.