Opinion
No. 41419.
Filed October 5, 1977.
Criminal Law: Sentences. A sentence imposed within statutory limits will not be disturbed on appeal unless there is an abuse of discretion.
Appeal from the District Court for Lancaster County: WILLIAM D. BLUE, Judge. Affirmed.
T. Clement Gaughan and George R. Sornberger, for appellant.
Paul L. Douglas, Attorney General, and Marilyn B. Hutchinson, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
The defendant, Tommie L. Williams, was charged with the felony offense of first degree sexual assault. He entered a plea of nolo contendere to a lesser amended charge of assaulting another inmate while confined in the Nebraska Penal and Correctional Complex. He was sentenced to 18 months to 5 years in the Nebraska Penal and Correctional Complex to be served consecutively to the sentence he was then serving. The sole issue on this appeal is whether or not the sentence is excessive.
The outline of the State's evidence presented to the sentencing court and the presentence investigation report show that the defendant, another inmate, and the victim were confined in the same cell at the reformatory. On the night of August 28, 1976, after the victim had refused sexual advances, the defendant held the victim from behind while the other inmate hit the victim several times in the face and stomach and the defendant held a pair of scissors in view of the victim. Thereafter the victim was forced to have fellatio with the defendant and the other cellmate.
The penalty for sexual assault in the first degree is imprisonment for not less than 1 year nor more than 25 years. 28-408.03, R.R.S. 1943. The penalty for assault by an inmate of the penal complex is imprisonment for not more than 5 years. 28-411(2), R.R. S. 1943.
The defendant was 18 years old at the time of the offense involved in this appeal and the primary thrust of his argument that the sentence is excessive is based on his youth. The presentence report from his previous felony conviction shows an extensive juvenile record largely involving burglary, receiving stolen property, and robbery. At age 17 he was charged with burglary in the District Court and following a plea bargain pleaded guilty to an amended charge of receiving stolen goods. He was serving a 2 to 5 year sentence in the reformatory at the time the offense involved in this appeal occurred.
The nature of the charge, the violence involved and the past record of this defendant establish that the sentence was not excessive. A sentence imposed within statutory limits will not be disturbed on appeal unless there is an abuse of discretion. State v. McKenney, 198 Neb. 564, 254 N.W.2d 81.
AFFIRMED.