# Nebraska v. Verma J. Harrison

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OPINION OF THE SUPREME COURT OF NEBRASKA
Case Title State of Nebraska, Appellant, v. Verma J. Harrison, Appellee.
Case Caption State v. Harrison
Filed January 22, 1999. No. S-97-1152.
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. Paul B. Schaub, Cheyenne County Attorney, for appellant. James R. Mowbray, of Nebraska Commission on Public Advocacy, and, on brief, Robin W. Hadfield for appellee.
STATE V. HARRISON NO. S-97-1152 - filed January 22, 1999.
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.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ, and WITTHOFF, D.J.
CONNOLLY, J.
The appellee, Verma J. Harrison, was convicted of two counts of motor vehicle homicide and sentenced to consecutive terms of probation by the district court. The Nebraska Court of Appeals reversed Harrison's sentences as excessively lenient, pursuant to Neb. Rev. Stat. § 29-2322 (Reissue 1995), and imposed consecutive sentences of imprisonment. State v. Harrison, 7 Neb. App. 350, 583 N.W.2d 62 (1998). We reverse the judgment of the Court of Appeals, concluding that the trial court did not abuse its discretion in imposing probation.
BACKGROUND
COLLISION Harrison was driving a GMC van on Interstate 80, near Sidney, Nebraska, at approximately 7:30 a.m. when the van she was driving collided with a Chrysler Town and Country van being driven by Joseph Nicolich, age 65. Joseph Nicolich's wife, Janice, age 60, was in the front passenger seat, and their granddaughter, Robyn Griffiths, age 11, was in the rear seat. The impact of the collision killed Robyn and Janice.
A Nebraska State Patrol officer determined that Harrison was intoxicated at the time of the collision. Harrison stated that she had been drinking in Ogallala until about 3 a.m., had slept a couple of hours in a motel, and was in a hurry to get to Cheyenne, Wyoming. Six motels located at the Ogallala interchange were contacted, and none had any record of Harrison's being registered on the relevant date.
Joseph Nicolich stated that at the time of the collision, he was traveling on I-80 and had passed a motorist who was stopped on the side of the road. He decided to pull over to offer assistance. He had pulled onto the shoulder and slowed down to approximately 25 miles per hour, when his vehicle was struck in the rear by Harrison's vehicle. According to an accident reconstructionist, Harrison was driving on the shoulder at the time of impact at a speed of approximately 65 to 75 miles per hour. It appeared that Harrison made no attempt to avoid the collision. Harrison stated that she thought she had fallen asleep at the wheel.
ARRAIGNMENT Harrison was charged with two counts of motor vehicle homicide, pursuant to Neb. Rev. Stat. § 28-306(l) (Reissue 1995), for allegedly causing the deaths of Janice and Robyn, unintentionally, while engaged in the operation of a motor vehicle. Harrison pled guilty in the district court to both counts after being informed of her rights by the court. The State recited the factual basis for the charges, which Harrison admitted. The trial court found that Harrison had freely, intelligently, and voluntarily entered each plea and accepted them. The trial court then ordered a presentence investigation.
SENTENCING Because we are faced with a sentencing issue, we will discuss the facts contained in the presentence report and those presented at the sentencing hearing in some detail.
The presentence report indicates that Harrison's life had been filled with abuse. Her father, who had been a uranium miner, died from lung cancer in 1971. After her father died, her mother had an affair with Harrison's married uncle, who also molested Harrison and her sister. The community later discovered her mother's adulterous relationship, and their family became outcasts. Harrison married an alcoholic in 1988 when she became pregnant, and she was divorced in 1994. Two of Harrison's children were from this marriage. The other child was the result of a relationship with a man who physically abused Harrison. Harrison was 32 years old at the time of sentencing.
Harrison was convicted of public intoxication in 1994 and driving under the influence of alcohol in 1995. Harrison participated in an 8-hour alcohol abuse course as a result of her 1995 conviction, but did not complete it. She had been fined for child neglect in 1992, which was also attributable to alcohol. Harrison began drinking regularly at age 15 and was drinking twice a week by her senior year in high school.
The presentence report contained numerous letters, some in support of and some in opposition to Harrison's receiving the maximum sentence. The letters in support of Harrison's receiving the maximum sentence were adequately characterized by the trial court during the pronouncement of sentence, which statement is set forth below. The letters in support of Harrison's receiving probation, particularly those from the director of the Laramie Head Start Program, the principal of the elementary school attended by Harrison's children, the pastor of Harrison's church, and a counselor and instructor for the AAA DUI Offender Program, indicated that Harrison was a responsible parent, was heavily involved in the community, and was making significant progress toward conquering her alcoholism. According to these letters, Harrison's attempt at rehabilitation was sincere and was likely to be successful.
At the sentencing hearing, the trial court asked Harrison whether she had anything she wanted to say. Harrison stated:
Yes, I would like to tell everybody in this courtroom today and say that there is [sic] no words for the depth of the remorse that I feel. The depth of the remorse that I feel, and I will never forget and I won't, Your Honor, for the rest of my life. I have learned so many valuable lessons in this whole thing. For the rest of my life I dedicate myself to my sobriety and then to helping others who are headed down the same way, because I never intended to hurt anybody. Joseph Nicolich testified on behalf of the State: I would like to say that I hope Verma Harrison receives the maximum jail time or prison time with no good time off for good behavior or probation. . . . . I would think that now Mrs. Harrison is trying to show the authorities how good she can morally and religiously be. I feel she would shake hands or marry the devil if it meant her getting off the charges against her. The trial court also had before it a letter handwritten by Cindy Griffiths, Robyn's mother, at the mother's request: October 7, 1997 Dear Justice Knapp, My name is Cindy Griffiths, my husband's name is Bill Griffiths. We are the parents of Robyn Griffiths (DOB 12/12/84) and the daughter and son-in-law of Janice Nicolich. Robyn and my mother, Janice, were brought to their deaths while driving through Sidney on June 28, 1996. My father, Joe Nicolich, was there too, as he was the driver. I am writing to you today in regards to Verma Harrison, who was driving the vehicle that crashed into my parents' car on I80. I understand her sentencing date is approaching quickly, and we wanted to let you know our thoughts. It's a little hard for me to know where to begin. To try to describe the agony of losing our precious daughter and mother is not something we can easily do, for the pain runs so very deep. It's beyond anything we've ever experienced. It's as though a major tidal wave -- a tsu nami -- has crashed down upon us and sen...
OPINION OF THE NEBRASKA COURT OF APPEALS (Designated for Permanent Publication) Case Title State of Nebraska, Appellant, v. Verma J. Harrison, Appellee. Case Caption State v. Harrison Filed July 14,1998. No. A-97-1152. Appeal from the District Court for Cheyenne County: John D. Knapp, Judge. Sentences vacated, and cause remanded for resentencing.
Paul B. Schaub, Cheyenne County Attorney, for appellant.
James R. Mowbray and Robin W. Hadfield, of Nebraska Commission on Public Advocacy, for appellee.
STATE V. HARRISON
NO. A-97-1152 - filed July 14,1998.
1. Sentences: Appeal and Error. Neb. Rev. Stat. § 29-2322 (Reissue 1995) provides that an appellate court, upon a review of the record, shall determine whether a sentence imposed is excessively lenient, having regard for (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed (a) to afford adequate deterrence to criminal conduct; (b) to protect the public from further crimes of the defendant; (c) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (4) any other matters appearing in the record which the appellate court deems pertinent.
2. ____ :____ . In a case where the State maintains that a sentence imposed on a defendant is excessively lenient, the standard of review is whether the sentencing court abused its discretion in the sentence imposed.
3. ____ :____ . An appeal in which the State contends that a sentence is excessively lenient must of necessity be reviewed by an appellate court on a case-by-case basis.
MILLER-LERMAN, Chief Judge, and SIEVERS and MUES, Judges.
MILLER-LERMAN, Chief Judge.
The State brings this appeal to this court pursuant to Neb. Rev. Stat. § 29-2320 (Reissue 1995). The State claims that the two sentences of consecutive 5-year probations imposed by the district court for Cheyenne County on Verma J. Harrison as a result of her convictions for two counts of motor vehicle homicide in connection with an accident following a night of drinking is excessively lenient. For the reasons recited below, we conclude that the sentences are excessively lenient, vacate the sentences, and remand the cause for imposition of two sentences of 30 months' to 5 years' incarceration to be served consecutively, pursuant to Neb. Rev. Stat. § 29-2323(l)(a) (Reissue 1995).
BACKGROUND The two victims killed in this motor vehicle accident were Janice Nicolich (Janice), age 60, and her granddaughter, Robyn Griffiths (Robyn), age 11. The accident occurred on June 28,1996, at approximately 7:30 a.m. on Interstate 80 near Sidney, Nebraska. The circumstances of this incident were as follows:
Joseph Nicolich (Nicolich), age 65, his wife, Janice, and their granddaughter, Robyn, were on vacation en route to the Nicolichs' son's wedding in Salt Lake City, Utah. The accident occurred 5.5 miles east and 1 mile south of the city of Sidney, on I-80 in Cheyenne County, Nebraska. Just prior to impact, Nicolich, driving west on I-80, noticed children and a broken-down vehicle on the roadside. He steered his vehicle onto the shoulder and slowed it to about 25 miles per hour. A second vehicle, driven by Harrison, followed the Nicolich vehicle onto the shoulder at about 70 miles per hour. Harrison's vehicle collided into the rear section of the Nicolich van, causing the Nicolich vehicle to propel forward, rotate, and land in the median between the eastbound and westbound Interstate lanes.
Harrison exited and walked away from her vehicle. Robyn died as a result of a massive blunt trauma of the head. One of the witnesses, Greg Stovall, noted that after seeing the crash, he and his wife stopped and went over to the Nicolich vehicle where they observed a "woman in front seat [Janice] died while my wife and myself were there." Janice died from a blunt trauma with probable cranial hemorrhage. There is evidence that the force of the impact was such that Janice's lap belt, shoulder restraints, and deployed air bag were unable to save her. Nicolich was injured in the crash.
The persons involved in the accident were transported by ambulance to the Sidney Memorial Health Center. Trooper Ronald Kissler of the Nebraska State Patrol arrived there and was told by members of the ambulance crew that they detected the smell of alcohol emanating from Harrison. Kissler searched for Harrison and located her in a room where she was undergoing a CAT scan. Kissler detected a strong odor of alcohol coming from Harrison. He then held a preliminary breath testing unit approximately 3 inches from Harrison's mouth and took a reading as she exhaled. The reading showed a substantial amount of alcohol. Kissler then asked Harrison if she had had anything to drink that day. At first, she said she had not, but paused a few seconds, and then said that she had been drinking beer and mixed drinks in Ogallala, Nebraska, until about 3 a.m. Harrison further stated that she had slept a couple of hours in a motel and was in a hurry to get back to Cheyenne, Wyoming.
At 9:52 a.m., on June 28, 1996, a registered nurse drew blood from Harrison. The sample was sent to the Nebraska State Patrol laboratory for analysis. At the preliminary hearing contained in the presentence report, Kissler stated that the results came back at .175 grams of alcohol per 100 milliliters of blood. At the arraignment hearing of August 5, 1997, as a factual basis for the plea, the prosecutor stated that the results of Harrison's blood test "revealed a body fluid alcohol content of point one five (.15) grams of alcohol per one hundred (100) milliliters of her blood."
At approximately 11 a.m., on June 28, 1996, Trooper Mike Gaudreault of the Nebraska State Patrol spoke to Harrison about the accident. Harrison stated she "thought she had fallen asleep" at the wheel. She recounted events leading up to the accident. Harrison said she had awakened at around 6:30 a.m. on June 27. Later that day, at approximately 2 p.m., Harrison and a friend drove from Cheyenne to Ogallala. Upon arriving in Ogallala, they decided to stay the night and go out dancing. At 10 p.m. on June 27, they went out to a lounge to dance and drink with some friends. Harrison stated that she consumed seven or eight beers and about three or four mixed drinks and quit drinking at about 3 a.m. Harrison stated that she went to sleep in a motel in Ogallala at about 4 a.m. Harrison stated that at 7 a.m. on June 28, she left Ogallala for Cheyenne. She indicated that she wanted to get home to meet with a boyfriend to leave on time for a vacation to New York the same day. According to Gaudreault, Harrison stated, "I pushed it to get home."
Gaudreault then asked Harrison for specific information leading up to the crash. Harrison said she was driving westbound on I-80, following a gray van at approximately one car length. The gray van proved to be the Nicolich vehicle. Harrison was traveling at about 70 miles per hour. She passed a broken-down vehicle, then heard her tires on the paved shoulder. She looked up to see the gray van on the shoulder in front of her and turned her steering wheel to the right to try to avoid a collision. She did not remember anything else about the crash.
Gaudreault asked Nicolich for information about the crash. Nicolich said he was traveling to Utah with his wife, Janice, and granddaughter, Robyn. He was driving westbound on I-80 at approximately 75 miles per hour. He saw several small children near a "broke down motorist" and then steered onto the shoulder. He had decelerated and was traveling at about 25 miles per hour when his vehicle was struck from behind by another vehicle. He said he did not know where the other vehicle had come from, since he had not seen any vehicles behind him when he began to pull over. He does not remember anything else about the crash.
Trooper George F. Lynch of the Nebraska State Patrol, a certified accident reconstructionist, testified at the preliminary hearing. He determined that the Nicolich vehicle was completely on the shoulder at the time of impact, traveling at a rate of approximately 25 miles per hour. Harrison was driving on the shoulder at the time of the impact at a rate of 65 to 70 miles per hour. Contrary to Harrison's assertions, Lynch stated that Harrison did not attempt to avoid a collision because "[t]his type of accident is consistent with a vehicle just going in a straight line at 14 degrees to the struck vehicle."
On July 31, 1996, local mechanic Rodger Sauder conducted a mechanical inspection of Harrison's vehicle. The vehicle was in the same condition as it was the day of the crash. Sauder did not detect any mechanical problems that might have contributed to an accident.
On September 10, 1996, Gaudreault contacted the motels in the area of I-80 at the Ogallala interchange to determine if Harrison had been registered during the time period of June 26, 27, or 28. Each of the motels reported no record of Harrison registered on said dates.
At the hospital following the accident, Harrison was advised by Kissler that she was under arrest for driving under the influence. An evidence form contained in the presentence report lists the following items found in Harrison's vehicle: three 12-ounce empty cans of beer and one shot glass. A signed postarrest chemical test advisement form is found in the presentence report as well as a waiver of Miranda rights, which is not signed by Harrison.
An information was filed on August 7, 1996, charging Harrison with two counts of manslaughter, Class III felonies. An amended information appears in the presentence report with a typed date of October 1996, charging Harrison with two counts of manslaughter and assault in the third degree, a Class I misdemeanor. This document does not bear a filing stamp. The controlling amended information filed July 3, 1997, to which Harrison pled guilty on August 5, charges Harrison with two counts of motor vehicle homicide, Class IV felonies. Class IV felonies are punishable by 0 to 5 years' incarceration, a $10,000 fine, or both. Neb. Rev. Stat. § 28-105 (Reissue 1995). For the sake of completeness, we note that § 28-105 has now been amended to provide a minimum punishment of 6 months' imprisonment. That change became operative on July 1, 1998, and does not impact this appeal. Following acceptance of the pleas, a presentence investigation was ordered.
The presentence report disclosed that Harrison is 32 years old, with three dependents. She graduated from high school and has taken courses at a community college. She has been employed at Sears, a jewelry store, and as a hostess at a restaurant in Cheyenne.
Her prior record includes a fine for child neglect in December 1992, which she attributes to alcohol use. She was convicted of public intoxication in December 1994.
In October 1995, she was convicted of driving under the influence of alcohol in Cheyenne. She was sentenced to 3 months' license suspension, 10 days in jail (time suspended), a $350 fine, and costs, and she was ordered to pay $50 to the victim compensation fund. Harrison reported to the probation officer preparing the presentence report that she stated to the Wyoming judge at sentencing on the prior driving under the influence conviction that "'I am thankful I did not kill anybody."' Harrison participated in an 8-hour alcohol abuse course in connection with the Wyoming driving under the influence conviction. However, she did not complete the course because she felt they treated her "'like a criminal"' and described the class as scary. The presentence report states that since the current offenses, Harrison has participated in a driving under the influence offender program.
The presentence report discloses that Harrison first began drinking regularly at 15, was drunk two times per week in high school, blacked out one time per month in high school, and consumed alcohol every day after graduating from high school. She reported that she had to drink 12 beers to reach a drunken state. In 1995, prior to her Wyoming driving under the influence offense, she used hard alcohol, preferring a pint of "'hot damn schnapps"' each day.
The presentence report shows that Dr. Kenneth A. Pettine reported on August 24, 1993, in connection with an evaluation of Harrison, that Harrison denied excessive use of alcohol. As noted above, she failed to complete the 8-hour alcohol abuse course following her conviction in Wyoming for driving under the influence. However, in contrast to the foregoing denials, on August 31, 1997, the instructor at the "Action DUI Offender Program" in Cheyenne stated that Harrison acknowledged her alcoholism and reported no alcohol or drug use since the June 1996 accident, which is the subject of this appeal.
Following receipt of the presentence report, the district court sentenced Harrison on October 28, 1997, to two consecutive terms of 5 years' probation on the counts of motor vehicle homicide. In sentencing Harrison, the court reviewed the "excellent" presentence report and noted the many letters contained therein. There were letters suggesting the maximum term of imprisonment submitted by family and friends of the victims. There were letters of support for Harrison. The parents of the victim Robyn wrote a lengthy letter of forgiveness, which was read into the record at sentencing. Nicolich wrote a three-page letter dated September 21, 1997, doubting reports of Harrison's rehabilitation, describing the daily sadness he experiences at the loss of his wife, and further describing his injuries as a result of the collision and his progress in psychiatric care.
At the sentencing hearing, Nicolich appeared and requested that Harrison receive maximum incarceration. He read his letter of September 21, 1997, into the record. A videotape portraying the victims, inter alia, at various family occasions was viewed by the court and is contained in the record on appeal. Harrison spoke and expressed remorse and indicated her intention to dedicate herself to sobriety and helping others. The trial judge stated, inter alia, as follows:
I am deeply touched by the letter from Mr. and Mrs. Griffiths [parents of the victim Robyn], they express a forgiveness and a relationship with God that is difficult, I think, for most of us to understand. The more understandable emotions are those expressed by other members of the family, which are quite simply, punish her as stringently, as severely as possible. And if I did that, it might give them some temporary sense of relief or some sense that our loved ones lives have been vindicated to some small, small degree. The trial judge concluded: Were it not for the letter from Mr. and Mrs. Griffiths, I think I would have, beyond a doubt, sentenced you to prison, but in the face of their expressed forgiveness and their belief in you, Ms. Harrison, which I certainly hope is not in vain, I feel that probation is appropriate in this particular instance. The trial court sentenced Harrison to 5 years' probation on each count, the sentences to be served consecutively. The conditions of probation subjected Harrison to random drug and alcohol testing, home visitations, and a treatment referral, and it ordered her not to violate the law or consort with individuals who do. The State appeals.
ASSIGNMENT OF ERROR As its assignment of error, the State claims that the district court abused its discretion by rendering excessively lenient sentences.
STANDARD OF REVIEW [1] Neb. Rev. Stat. § 29-2322 (Reissue 1995) provides in part that an appellate court, upon a review of the record, shall determine whether a sentence imposed is excessively lenient, having regard for
(1) The nature and circumstances of the offense; (2) The history and characteristics of the defendant; (3) The need for the sentence imposed: (a) To afford adequate deterrence to criminal conduct; (b) To protect the public from further crimes of the defendant; (c) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and (d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (4) Any other matters appearing in the record which the appellate court deems pertinent. [2,3] In a case where the State maintains that a sentence imposed on a defendant is excessively lenient, the standard of review is whether the sentencing court abused its discretion in the sentence imposed. State v. Wojcik, 238 Neb. 863, 472 N.W.2d 732 (1991); State v. Cotton, 2 Neb. App. 901, 519 N.W.2d 1 (1 994). An appeal in which the State contends that a sentence is excessively lenient must of necessity be reviewed by an appellate court on a case-by-case basis. State v. Ummel, 1 Neb. App. 541, 500 N.W.2d 191 (1993). ANALYSIS The State generally claims on appeal that the sentences imposed on Harrison are excessively lenient. The State refers specifically to the criteria set forth in § 29-2322 in urging this court to reverse and vacate Harrison's two consecutive sentences of 5 years' probation. In response, Harrison urges this court to affirm the sentences, claiming that she now faces her alcohol problem, that she is subject to conditions of probation, and that removing her from the home would be detrimental to her dependents. Having reviewed the record in this case and the criteria set out in § 29-2322, we believe that a sentence of probation must be said to be excessively lenient.
The nature of the offenses are extremely serious, from both the standpoint of the loss of lives and the injury which the survivor, Nicolich, sustained and from which he still suffers. Moreover, the history and characteristics of Harrison require us to reach a conclusion that sentences of probation are excessively lenient. Harrison was previously given an opportunity to rehabilitate herself in connection with her driving under the influence conviction in Wyoming within the year prior to this crash, but she elected not to take advantage of that opportunity. According to Harrison, she failed to complete the 8-hour alcohol abuse course because they treated her like a criminal and it was scary. The current incident occurred shortly after the foregoing decision of Harrison to perpetuate her denial that she had an alcohol problem involving drinking and driving and to not rehabilitate herself. In this regard, we acknowledge that there is a showing in the presentence report that since the accident involved in this case, Harrison now appreciates the danger that her drinking and driving poses.
Harrison claims on appeal that the public is protected from further crimes which she might commit because she is subject to conditions of probation. The State correctly notes that Harrison is not subject to intensive supervision, not required to participate in rehabilitative treatment, not required to make restitution or perform community service, not required to have daily contact with the probation officer, and does not have a monitored curfew. The protection of the public from further crimes by Harrison cannot be assured under the conditions of probation now imposed, nor does such a sentence serve as an adequate deterrent to further criminal conduct. Such a sentence does not reflect the seriousness of the offense, nor does it promote respect for the law or provide just punishment for the instant offenses, all factors which we are required to review pursuant to § 29-2322.
In State v. Winsley, 223 Neb. 788, 393 N.W.2d 723 (1986), the Nebraska Supreme Court found a sentence excessively lenient and modified a sentence of probation to one of incarceration. In its analysis, the court noted that "[w]e are somewhat impressed in this matter that even the sentencing judge had misgivings about placing [the defendant] on probation." Id. at 792, 393 N.W.2d at 726. In the instant case, the district judge was correct in entertaining those misgivings, and indeed, probation should not have been ordered. We are of the opinion that a period of incarceration is required to meet the requirements of a proper sentence under the facts of this case.
It has been stated that cases involving claims of excessively lenient sentences must be reviewed on a case-by-case basis and that as a result, appellate courts are unable to set out with exactness any greater standards than those prescribed by the provisions in § 29-2322. State v. Winsley, supra. Nevertheless, an examination of all the factors in this case leads us to the conclusion that the sentences of probation imposed herein were excessively lenient.
The two sentences of 5 years' probation to be served consecutively are, therefore, vacated. Pursuant to § 29-2323(l)(a), this cause is remanded for imposition of two sentences of 30 months' to 5 years' incarceration* to be served consecutively and for administration of the proper truth in sentencing advisements. SENTENCES VACATED, AND CAUSE REMANDED FOR RESENTENCING.
The opinion filed by this court today, July 14, 1998, in the above-entitled case, is hereby ORDERED amended to change the order regarding sentence upon remand, found on pages 1 and 5 of the opinion, to read "20 months' to 5 years' incarceration" rather than "30 months' to 5 years' incarceration."
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