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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. WELTY-HACKETT

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLANT,

V.

TAYLOR W. WELTY-HACKETT, APPELLEE.

Filed December 19, 2017. No. A-17-239.

Appeal from the District Court for Buffalo County: WILLIAM T. WRIGHT, Judge. Sentence 

vacated, and cause remanded with directions.

Shawn R. Eatherton, Buffalo County Attorney, and Patrick M. Lee for appellant.

Thomas S. Stewart, Deputy Butler County Public Defender, for appellee.

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

MOORE, Chief Judge.

INTRODUCTION

Taylor W. Welty-Hackett (Welty) pled no contest to attempted first degree sexual assault, 

a Class IIA felony. The district court for Buffalo County sentenced Welty to a 4-year term of 

intensive supervised probation. The State of Nebraska appeals the sentence as excessively lenient. 

Because we find that the district court considered impermissible and irrelevant factors in 

sentencing Welty, we vacate the sentence, and remand the cause with directions.

BACKGROUND

In August of 2015, the Kearney Police Department received a report that Welty had sexual 

relations with a 12-year-old girl, A.R. The officer assigned to the case contacted A.R., her sister, 

and her mother to gather facts. A.R.’s sister showed the officer a conversation she had with Welty 

on Facebook. She asked Welty how old he was and whether he had sex with A.R. Welty responded 
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that he was 21 years old and that he did have sex with A.R. The police attempted to interview A.R. 

about her relationship with Welty several times, but she refused to speak other than to say she did 

not tell Welty she was older than she was. Therefore, the police were only able to gather 

information from Facebook and Welty’s responses to police questions.

Welty described his dealings with A.R. to the investigating officer. According to Welty, 

A.R. contacted him by “friending” him on Facebook. Welty claims A.R. told him she was 22 years

old. Immediately after Welty accepted A.R.’s friend request, A.R. sent him a message saying she 

wanted to meet him. She instructed him to bring a condom to their meeting. A.R. then used 

Snapchat to tell Welty to pick her up at a Walmart store. Welty suffered from regular migraines, 

and self-medicated with nonprescribed controlled substances and alcohol. By the time Welty 

reached the Walmart, he had taken two to three pain relievers and drank four or five beers. After 

picking up A.R. in his vehicle, Welty drove her around town. At a gas station, A.R. groped his 

genitals. Initially, Welty could not remember anything beyond this point, claiming he drank too 

much to remember what happened. Later, he recalled driving to a Menards where he told A.R. she 

needed to leave. In response, A.R. caressed his arm and asked to have sex with him. Welty and 

A.R. then had sexual relations using a condom in Welty’s car. When they finished, A.R. instructed 

Welty to drop her off at a gas station. He left her there between 11:30 p.m. and midnight.

Welty was originally charged with first degree sexual assault of a child, a Class IB felony, 

felony child abuse, a Class IIIA felony, and contributing to the delinquency of a minor, a Class I 

misdemeanor. In the State’s third amended information, the State reduced the sexual assault charge 

to attempted first degree sexual assault, a Class IIA felony. The remaining charges were dismissed. 

Welty pled no contest to the third amended information at a November 14, 2016 hearing. The court 

found beyond a reasonable doubt Welty was guilty of attempted first degree sexual assault. The 

court ordered a presentence investigation report (PSR). The court reviewed the PSR and sentenced 

Welty to a four-year term of intensive probation, subject to numerous conditions. Welty was also 

ordered to comply with the Sexual Offender Registration Act (SORA). Because Welty had been 

in jail for 95 days, the court gave him a 95-day jail sentence with credit for time served. The State 

timely filed this appeal.

ASSIGNMENTS OF ERROR

The State assigns, consolidated and restated, that the district court erred in imposing a 

sentence that was excessively lenient based upon improper, impermissible, and irrelevant 

considerations.

STANDARD OF REVIEW

When reviewing a sentence within the statutory limits, whether for leniency or 

excessiveness, an appellate court reviews for an abuse of discretion. State v. Parminter, 283 Neb. 

754, 811 N.W.2d 694 (2012). 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. Id.

Plain error exists where there is error, plainly evident from the record but not complained 

of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to 
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leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, 

reputation, and fairness of the judicial process. State v. Betancourt-Garcia, 295 Neb. 170, 887 

N.W.2d 296 (2016).

ANALYSIS

Excessively Lenient Sentence.

The State assigns, as combined, that the district court abused its discretion by imposing an 

excessively lenient sentence on Welty based upon improper, impermissible, and irrelevant 

considerations. The State asserts the court had no reasonable factual basis for imposing probation 

rather than imprisonment. The State supports its claim with the trial judge’s comments at the 

sentencing hearing.

When the State appeals from a sentence, contending that it is excessively lenient, an 

appellate court reviews the record for an abuse of discretion. State v. Thompson, 15 Neb. App. 

764, 735 N.W.2d 818 (2007). Similarly, a grant of probation will not be disturbed unless there has 

been an abuse of discretion by the sentencing court. Id. When the State challenges a sentence as 

excessively lenient, the appellate court should consider the following factors: (1) the nature and 

circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for 

the sentence imposed to deter further criminal conduct; (4) the need for the sentence to protect the 

public from further crimes of the defendant; (5) the need for the sentence to reflect the seriousness 

of the offense, to promote respect for the law, and to provide just punishment for the offense; (6) 

the need for the sentence to provide the defendant with needed educational or vocational training, 

medical care, or other correctional treatment in the most effective manner; and (7) any other 

matters appearing in the record which the appellate court deems pertinent. State v. Parminter, 

supra (restating factors listed in Neb. Rev. Stat. § 29-2322 (Reissue 2016)). A sentencing court is 

not limited in its discretion to any mathematically applied set of factors. State v. Parminter, supra. 

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 of the facts and circumstances 

surrounding the defendant’s life. Id. But the court must have some reasonable factual basis for 

imposing a particular sentence. Id.

Because the district court imposed probation rather than imprisonment, to review the 

court’s decision for abuse of discretion, we must analyze the factors in Neb. Rev. Stat. § 29-2260 

(Reissue 2016). Section 29-2260 provides in pertinent part:

(2) Whenever a court considers sentence for an offender convicted of either a 

misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is 

not specifically required, the court may withhold sentence of imprisonment unless, having 

regard to the nature and circumstances of the crime and the history, character, and condition 

of the offender, the court finds that imprisonment of the offender is necessary for protection 

of the public because

(a) The risk is substantial that during the period of probation the offender will 

engage in additional criminal conduct;

(b) The offender is in need of correctional treatment that can be provided most 

effectively by commitment to a correctional facility; or
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(c) A lesser sentence will depreciate the seriousness of the offender’s crime or 

promote disrespect for law.

(3) The following grounds, while not controlling the discretion of the court, shall 

be accorded weight in favor of withholding sentence of imprisonment:

(a) The crime neither caused nor threatened serious harm;

(b) The offender did not contemplate that his or her crime would cause or threaten 

serious harm;

(c) The offender acted under strong provocation;

(d) Substantial grounds were present tending to excuse or justify the crime, though 

failing to establish a defense;

(e) The victim of the crime induced or facilitated commission of the crime;

(f) The offender has compensated or will compensate the victim of his or her crime 

for the damage or injury the victim sustained;

(g) The offender has no history of prior delinquency or criminal activity and has 

led a law-abiding life for a substantial period of time before the commission of the crime;

(h) The crime was the result of circumstances unlikely to recur;

(i) The character and attitudes of the offender indicate that he or she is unlikely to

commit another crime;

(j) The offender is likely to respond affirmatively to probationary treatment; and

(k) Imprisonment of the offender would entail excessive hardship to his or her 

dependents.

Sentencing Judge’s Comments.

Because the bulk of the State’s complaints regarding the sentence imposed stem from the 

trial judge’s comments at sentencing, we set forth those comments here:

The Court’s had an opportunity to go through the [PSR] several times. And the 

unfortunate thing about it is that while it is clear that the defendant in this case had sexual 

relations with a 12-year-old girl and whether he knew or did not know - technically did or 

did not know she was 12 years old, technically doesn’t make any difference. But there is 

minimal information in the PSR about what the defendant did know, at least for the 

purposes of mitigating why it happened from a sentencing standpoint. From what the Court 

can tell, all contact or all initiation of contact between the parties was made by the 

12-year-old. There is very little information in the PSR with regard to what the 12-year-old 

looked like.

It’s clear that, at least according to [Welty’s] relation to what happened, and he’s 

the only one apparently who related what happened to the victim’s sister or the police, that 

the 12-year-old was interested in having sex and contacted him for that specific purpose, 

even though she apparently had no prior knowledge of the person, except potentially by 

reputation. She was the aggressor, she made the advances. She actually grabbed him 

sexually and asked whether he was going to bring condoms.
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That doesn’t excuse the act, but unfortunately, what it does do is remind the court 

of repeated instances it’s heard of over the last several years of occasions where early teen 

and preteen girls for whatever reason have decided that they want an experience and go out 

and force the issue with people that they know are older. And probably ought to know a 

hell of a lot better. And these girls are encouraged to do so by their own friends, by some 

kind of ethic which encourages them to dispense with their virginity or anything similar so 

they can have the experience that everybody else is supposedly bragging or arguing about.

Now, it’s hard to know exactly if that’s what occurred in this case because even the 

victim refused to cooperate, refused to tell anybody anything, to include the people at [the 

Family Alliance Network].

Sentences in somewhat similar cases have run from anywhere to 2 to 4 years up to 

12 years. And the defendant’s already served some 95 days in jail. At a minimum, he’s 

going to end up spending probably the next 25 years, if not his lifetime, functioning as a 

registered sex offender.

And I don’t know how to bring some balance back into this thing, but probably 

about time you do so. I will tell you that in the past, Mr. Welty, probably a year ago, two 

years ago, you would be on your way to prison. But I’m going to try to bring some balance 

to the situation. So I am going to order or find you are a candidate for probation. It’s not 

going to be a particularly easy one.

Following the imposition of sentence, the district court further advised Welty:

Please understand, you screwed up big time, but I’ve got to find some way of bringing 

some balance back into the system, given the nature of what’s been occurring in this 

community. I don’t know any other way to do it, other than what I’ve done. And quite 

frankly, you are getting the benefit of it, for better or worse.

The State points to the court’s comments about the victim’s physical appearance, labeling 

the victim as the “aggressor,” the general problem of promiscuous teenage girls, and the need to 

bring “balance” into sentencing for this type of crime, as examples of the court having considered 

improper matters in imposing sentence.

Clearly, the victim’s appearance (whether she appeared older than her given age) and 

whether she was the “aggressor” of the sexual contact are irrelevant as to Welty’s guilt or 

innocence. Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2016) provides that an actor, who is 19 years 

of age or older, who subjects a victim who is at least 12 but less than 16 years of age to sexual 

penetration, is guilty of sexual assault in the first degree. Consent or reasonable mistake as to the 

age of the victim is not a defense to first degree sexual assault of a child. State v. Heitman, 262 

Neb. 185, 629 N.W.2d 542 (2001). However, from the larger context of the comments made at the 

sentencing hearing, it appears that the trial court was not excusing or justifying Welty’s actions. 

In fact, the sentencing judge specifically stated that the victim’s actions do not “excuse the act.”

Further, the court’s comments related to the lack of information in the PSR as it relates to 

“mitigating” factors “from a sentencing standpoint.”
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To determine if a sentence of probation is appropriate, the court may weigh, among other 

considerations, whether “substantial grounds were present tending to excuse or justify the crime, 

though failing to establish a defense,” and whether “the victim of the crime induced or facilitated 

commission of the crime.” See § 29-2260(3)(d) and (e). Thus, the court’s comments about the lack 

of information regarding the victim’s appearance, Welty’s belief about her age, and the victim 

being the aggressor, could be relevant considerations for withholding a sentence of imprisonment 

under § 29-2260.

The district court’s statements about the promiscuity of teenage girls and the need to bring 

“balance” into sentencing sexual offenders are of greater concern. These comments do not relate 

to any statutory grounds noted in § 29-2260(3) for withholding a sentence of imprisonment. These 

comments clearly go beyond consideration of the facts of this particular case and were 

impermissible and irrelevant factors to consider in determining an appropriate sentence in this 

case.

The State points to the case of State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998), in 

support of its argument. In Pattno, the sentencing judge read a passage from the Bible that 

disapproves of homosexual behavior when sentencing a male defendant for the sexual assault of a 

thirteen year-old boy. The Nebraska Supreme Court concluded that the judge’s reliance on his 

personal religious beliefs injected an impermissible religious consideration into the sentencing 

process that could convince a reasonable person the court exercised bias or prejudice in sentencing. 

Finding an abuse of discretion, the court vacated the sentence imposed and remanded with 

directions that the defendant be resentenced by a different judge.

In State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007), the defendant pled no 

contest to two counts of sexual assault of a child and was sentenced to five years’ intensive 

supervised probation on each count, to run consecutively. The State appealed the sentence as being 

excessively lenient. The primary basis of the State’s argument revolved around certain comments 

made by the sentencing judge regarding the defendant’s small physical stature which might cause 

him problems if he went to prison. In affirming the sentence imposed, this court underwent a 

thorough examination of the presentence investigation report and analysis of the statutory 

sentencing factors, which we determined supported the imposition of probation. We concluded 

that

if the sentencing judge went awry in this case, it was only in failing to provide a more 

detailed explanation on the record of the multiple factors in the PSI which clearly justified 

the probationary sentences she imposed. Such failure caused the trial judge’s brief mention 

of [the defendant’s] small physical stature to become the focus of attention, when in reality 

it was but a minor point.

Id. at 790, 735 N.W.2d at 837.

Unlike in State v. Thompson, the sentencing judge’s comments in this case were more than 

just a “brief mention” of factors not relevant to imposing sentence. The court’s discussion of the 

general promiscuity of teenage girls and the need to bring balance into the system was fairly 

substantial. Further, the comments had nothing to do with this particular defendant, in contrast to 

State v. Thompson. We recognize that the trial judge in this case indicated he had reviewed the 
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PSR before the sentencing hearing. While the information contained in the PSR may well have 

supported the probationary sentence imposed, we cannot determine from the judge’s comments at 

sentencing how much weight was given to the permissible and relevant sentencing factors 

compared to the impermissible and irrelevant factors. We note, however, the court’s final 

comments before imposing sentence that Welty was getting the benefit of the court’s desire to 

“find some way of bringing some balance back into the system, given the nature of what’s been 

occurring in this community.”

Because it appears that the trial court’s reliance upon the impermissible and irrelevant 

sentence factors largely influenced his decision to impose probation, we find it necessary to vacate 

the sentence imposed and remand for resentencing before a different judge.

CONCLUSION

We conclude that the district court abused its discretion by considering impermissible and 

irrelevant factors when imposing sentence upon Welty. We vacate the sentence, and remand the 

cause to the district court for resentencing before a different judge.

SENTENCE VACATED, AND CAUSE 

REMANDED WITH DIRECTIONS.