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State v. Harrison1/22/1999
Designated for Permanent Publication
___N.W.2d___
1. Sentences: Probation and Parole: Appeal and Error. 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.
2. Sentences: Appeal and Error. It is not the function of an appellate court to conduct a de novo review of the record to determine whether a sentence is appropriate.
3. Sentences. The sentencing court is not limited in its discretion to any mathematically applied set of factors. 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.
4. Judges: Words and Phrases. 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. If the reasons given by the court for its action are clearly untenable or unreasonable, if its action clearly amounts to a denial of Justice, if clearly against Justice or conscience, reason, and evidence, it has abused its discretion.
5. Sentences: Appeal and Error. When applying the criteria enumerated in Neb. Rev. Stat. § 29-2322 (Reissue 1995), which authorizes an increase of sentence on appeal, the inquiry is whether the trial court's decision was clearly untenable, unfairly deprived a litigant of a substantial right, and denied a just result. Thus, so long as the trial court's sentence is within the statutorily prescribed limits, is supported by competent evidence, and is not based on irrelevant considerations, an appellate court cannot say that a trial court has abused its discretion. Such a sentence is not untenable, does not unfairly deprive a litigant of a substantial right, and does not deny a just result.
6. Sentences: Probation and Parole: Appeal and Error. The trial court has the opportunity to observe the defendant throughout the judicial process and is in a better position than an appellate court to determine whether the defendant is suited for probation. Moreover, a sentencing Judge has broad discretion as to the source and type of information, including personal observations, which may be used as assistance in determining the kind and extent of the punishment to be imposed.
7. ____: ____: ____. In determining where probation may be imposed, an appellate court must consider Neb. Rev. Stat. § 29-2260 (Reissue 1995), whether reviewing a sentence for excessiveness, pursuant to Neb. Rev. Stat. § 29-2308 (Reissue 1995), or for leniency under Neb. Rev. Stat. § 29-2322 (Reissue 1995).
8. Sentences. A sentence should fit the offender and not merely the crime.
9. ____. A sentence not involving confinement is to be preferred to a sentence involving partial or total confinement in the absence of affirmative reasons to the contrary.
10. Sentences: Probation and Parole. Justice may certainly be served by a sentence of probation. Whether Justice is so served is a matter that is, in the first instance, properly left to the trial court.
Petition for further review from the Nebraska Court of Appeals, MILLER-LERMAN, Chief Judge, and SIEVERS and MUES, Judges, on appeal thereto from the District Court for Cheyenne County, JOHN D. KNAPP, Judge. Judgment of Court of Appeals reversed and remanded with directions.
HENDRY, C.J
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