In State v. Vanella, 40 Mont. 326, 106 P. 364, appears a discussion by Justice Holloway of an instruction somewhat similar.Summary of this case from State v. Quigg
Filed July 3, 1975.
Appeal from the District Court for Hall County: DONALD H. WEAVER, Judge. Affirmed.
Joseph D. Martin, for appellant.
Paul L. Douglas, Attorney General, and Ralph H. Gillan, for appellee.
Heard before SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
The defendant, Peter J. Vanella, Jr., pled guilty in the District Court for Hall County, Nebraska, to a charge of burglary committed on August 2, 1974. On October 30, 1974, he was sentenced to a term of 2 to 3 years in the Nebraska Penal and Correctional Complex with credit being given for time spent in the county jail. On this appeal he claims the sentence is excessive. We affirm.
At the time of the offense defendant was 18 years of age. He had not been previously convicted of a felony. He had, however, in 1969 and 1970, been arrested on charges of petit larceny and joy riding, and had been apprehended for running away from home. He was committed to the Youth Development Center in Kearney from which he escaped on August 26, 1973. He was recommitted and apparently spent a total of 3 years in that institution before his release on December 20, 1973. His subsequent work record was indicative of unreliability. He is apparently above average in intelligence. He has an unfortunate family history.
The burglary to which he pled guilty was one of two in which he participated with a companion on the same night. The companion received an identical sentence.
We have carefully examined the presentence investigation report. It and defendant's history tend to show an attitude on the part of the defendant which places doubt upon the effectiveness of past efforts at correction. The sentencing judge apparently concluded that a stiff sentence was required if there was any possibility of defendant changing his outlook. We cannot, on the record, conclude that the judge was wrong or that the sentence demonstrates an abuse of discretion.