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State v. Burnett2/3/2004
s of Marlboro cigarettes that were found in her car; (6) the condition of the cigarettes received in evidence had not been compromised; (7) there was no evidence to support Burnett's testimony that there was a third person involved; and (8) Burnett never suggested to the police that a third individual was involved with the theft of the cigarettes.
After viewing the evidence in the light most favorable to the prosecution, and without resolving any conflicts in the evidence or passing on the credibility of the witnesses, we find no merit to this assignment of error.
Excessive Sentence
Burnett next complains that his sentence is "unnecessarily harsh and contrary to the best interests of society." Brief for appellant at 6-7.
Section 28-518 addresses the classification and grading of theft offenses. In the instant case, while Burnett was originally charged with a Class IV felony, for sentencing purposes, the district court found Burnett guilty of a Class I misdemeanor because the State's evidence was insufficient to allow an enhanced sentence consistent with a Class IV felony. According to Neb. Rev. Stat. § 28-106 (Cum. Supp. 2000), a Class I misdemeanor is punishable by a maximum of 1 year's imprisonment, a $1,000 fine, or both. Burnett was sentenced to 1 year's imprisonment, with 23 days' credit for time served.
In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002). Where a sentence imposed within statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying these factors, as well as any applicable legal principles, in determining the sentence to be imposed. State v. Roeder, 262 Neb. 951, 636 N.W.2d 870 (2001). In considering a sentence, a 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 observations of the defendant's demeanor and attitude and all of the facts and circumstances surrounding the defendant's life. State v. Kula, 262 Neb. 787, 635 N.W.2d 252 (2001). An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. State v. Roeder, supra.
In announcing Burnett's sentence, the district court noted that Burnett has a very lengthy record of petty and serious crimes (in excess of 100 entries) and, further, that Burnett was, as the State remarked, a "menace to the community" and a "serial thief." The presentence investigation report indicates that Burnett was 52 years old at the time of sentencing and shows scores of theft and shoplifting convictions. A sampling of Burnett's other convictions includes burglary, grand larceny, false reporting, trespassing, disorderly conduct, first degree sexual assault, driving under the influence , and attempted escape. The district court considered all of the appropriate sentencing factors. The sentence imposed on Burnett was within the statutory limits and was not an abuse of discretion. This assignment of error is without merit.
CONCLUSION
We conclude that the district court did not err in finding there was sufficient evidence to support Burnett's conviction. Neither did the district cou
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