State v. Weidenfeller

Full title: STATE OF NEBRASKA, APPELLEE, v. LEO A. WEIDENFELLER, APPELLANT

Court: Supreme Court of Nebraska

Date published: Jan 12, 1973

189 Neb. 505 (Neb. 1973)

203 N.W.2d 784

Opinion

No. 38587.

Filed January 12, 1973.

Sentences: Appeal and Error. Unless an abuse of discretion appears, a sentence within statutory limits will not be disturbed on appeal.

Appeal from the district court for Douglas County: DONALD J. HAMILTON, Judge. Affirmed.

Paul E. Watts, for appellant.

Clarence A. H. Meyer, Attorney General, and Melvin K. Kammerlohr, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

McCOWN, J.

The defendant was convicted of sodomy and sentenced to 1 to 2 years imprisonment. The sole basis for the appeal is that the sentence is excessive.

The defendant was 44 years old. His prior record revealed only minor traffic violations. The charge of sodomy on which he was convicted here was with a 14-year-old boy. As a part of a plea bargain, another count involving sodomy with an 11-year-old boy was dismissed. The defendant's statements and the presentence investigation report indicate similar conduct with another boy who was 12 years old. The charge on which defendant was convicted was not a single isolated incident. The opinion of the psychiatrist and psychotherapist for the defendant was that there would be no recurrence of the defendant's criminal conduct. No evidence was introduced by the State.

The defendant contends that he should have been granted probation. Probation is a favored sentencing alternative, particularly for first offenders, and some of the criteria for granting probation are present here. Nevertheless, the nature and circumstances of the crime, the age of the minor involved, and the evidence of similar conduct with other minors, make it impossible to find that the sentencing court abused its discretion. The maximum allowable sentence was 20 years and the sentence of 1 to 2 years imposed was at the lower level of the statutory limits. There was no abuse of discretion.

Unless an abuse of discretion appears, a sentence within statutory limits will not be disturbed on appeal. State v. Morosin, 187 Neb. 521, 192 N.W.2d 165. The judgment is affirmed.

AFFIRMED.