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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. HURD

Cite as 307 Neb. 393

State of Nebraska, appellee, v. 

Kenneth E. Hurd, appellant.

___ N.W.2d ___

Filed October 2, 2020. No. S-19-919.

1. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

2. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the 

lower court.

4. ____: ____. An appellate court will not resort to interpretation to 

ascertain the meaning of statutory words that are plain, direct, and 

unambiguous.

5. Courts: Sentences. A sentencing court has wide latitude and discretion 

to impose any sentence within the statutory limits.

Appeal from the District Court for Seward County: James C. 

Stecker, Judge. Affirmed.

Jim K. McGough and Nathan S. Lab, of McGough Law, 

P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/10/2020 01:10 AM CST
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. HURD

Cite as 307 Neb. 393

Heavican, C.J.

INTRODUCTION

Kenneth E. Hurd pled no contest to a misdemeanor charge 

of child abuse. He was sentenced to 1 year’s imprisonment. He 

appealed, and we moved this case to our docket to answer the 

question of whether, under Neb. Rev. Stat. § 81-1848 (Cum. 

Supp. 2018), a victim may both fill out a victim impact statement to be included in the presentence investigation report 

and also write and read a separate letter to be offered at the 

defendant’s sentencing hearing. We conclude that the plain language of § 81-1848 allows both a victim impact statement and 

a written letter and that Hurd’s sentence was not excessive. We 

accordingly affirm.

FACTUAL BACKGROUND

Hurd was charged by information with incest. Pursuant to 

a plea agreement, Hurd subsequently pled no contest to one 

count of misdemeanor child abuse. In return for Hurd’s no contest plea, the State agreed to recommend probation.

A presentence investigation report was completed. The victim included a victim impact statement, consisting of responses 

to a questionnaire drafted by the probation office, and suggested 

that she believed probation would be appropriate. The probation officer completing the report indicated the same.

At the sentencing hearing, the State offered a factual basis 

alleging that Hurd resided with his wife and the alleged victim 

in this case and that Hurd subjected the victim to emotional 

trauma and physical abuse. The State also requested that the 

victim be permitted to read aloud a separate letter that she had 

written to Hurd. That request was granted over Hurd’s objection. The contents of the letter were read into the record, and 

the letter itself was entered into evidence. Hurd was subsequently sentenced to 1 year’s imprisonment.

Hurd appeals.
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. HURD

Cite as 307 Neb. 393

ASSIGNMENTS OF ERROR

Hurd assigns, renumbered, that the district court abused its 

discretion by (1) allowing the victim to submit a statement to 

be included in the presentence investigation report and allowing her to also read a separate letter that was then offered into 

evidence for purposes of sentencing and (2) relying on statements suggesting that Hurd had committed first degree sexual 

assault in sentencing him to the maximum 1-year sentence of 

imprisonment allowable for his conviction for misdemeanor 

child abuse.

STANDARD OF REVIEW

[1,2] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. 1 An abuse of discretion occurs when a trial court’s 

decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence. 2

[3] Statutory interpretation presents a question of law, which 

an appellate court reviews independently of the lower court. 3

ANALYSIS

Interpretation of § 81-1848(1)(d).

In his first assignment of error, Hurd argues that the district 

court erred in allowing the victim to provide a victim impact 

statement for the presentence investigation report and to also 

read and offer to the court a separate, written statement.

As relevant, § 81-1848 provides:

(1) Victims as defined in section 29-119 shall have the 

. . . right[]:

. . . .

1 State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).

2 Id.

3 State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020).
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. HURD

Cite as 307 Neb. 393

(d) To be notified by the county attorney by any means 

reasonably calculated to give prompt actual notice of 

the following:

. . . .

(iv) The victim’s right to make a written or oral impact 

statement to be used in the probation officer’s preparation of a presentence investigation report concerning 

the defendant;

. . . .

(vii) The victim’s right to submit a written impact 

statement at the sentencing proceeding or to read his or 

her impact statement submitted pursuant to subdivision 

(1)(d)(iv) of this section at the sentencing proceeding.

We held in State v. Galindo,

 4 and reiterated in State v. Thieszen, 5

that § 81-1848 of the Nebraska Crime Victim’s Reparations Act 

provides a list of baseline rights and that the act “does not seek 

to limit the sentencing court’s traditional discretion to consider 

evidence from a variety of sources.”

Hurd’s assignment of error presents two issues—whether 

the victim was entitled to submit both a victim impact statement under § 81-1848(1)(d)(iv) and a written impact statement 

under § 81-1848(1)(d)(vii) and whether the district court erred 

in allowing the victim to read the second impact statement 

at sentencing before making the written version part of the 

record. These issues require this court to consider the language 

of § 81-1848. There is no allegation on appeal that the State 

violated the plea agreement.

[4] An appellate court will not resort to interpretation to 

ascertain the meaning of statutory words that are plain, direct, 

and unambiguous. 6

In this case, the language of § 81-1848 plainly states that 

the victim had both the right to offer a written statement for 

4 State v. Galindo, 278 Neb. 599, 670, 774 N.W.2d 190, 245 (2009).

5 See State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696 (2018).

6 State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).
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Nebraska Supreme Court Advance Sheets

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STATE v. HURD

Cite as 307 Neb. 393

the presentence investigation report under subsection (1)(d)(iv) 

and to also offer a written impact statement at the time of 

sentencing under subsection (1)(d)(vii). As the State notes, the 

ability to do so seems to be a “peculiar quirk” of that section, 

but the language is nevertheless plain in allowing both. 7 The 

victim here did both, as was permitted by statute, and we find 

no error in the district court’s allowing both to be considered 

at sentencing.

We note that Hurd objected to the written letter offered at 

sentencing on the ground that the victim had offered a written 

statement for inclusion in the presentence investigation report. 

We also note that Hurd further objected to facts relating to a 

sexual assault included in the report. But Hurd did not seek 

a continuance as a result of the reading or offering of the 

victim’s letter, nor did he argue that the information alleged 

in the letter read and offered at sentencing was unknown 

to him.

We also observe that the same plain language set forth 

above does not explicitly reserve to a victim the right to read 

aloud a separate victim impact statement drafted for purposes 

of sentencing, as occurred in this case. But as we have previously noted, the rights set forth in § 81-1848 are baseline rights 

and do not limit a sentencing court’s discretion to consider 

evidence from a variety of sources. Where Hurd has failed to 

demonstrate that he was prejudiced by the victim’s reading her 

letter, a written version was, in any case, made available to 

the court. 8

The district court has discretion to consider many things in 

determining a sentence, as will be discussed below. Allowing 

this letter to be read, rather than simply offered, is consistent 

with this discretion. Hurd’s first assignment of error is without merit.

7 Brief for appellee at 11.

8 See State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
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Nebraska Supreme Court Advance Sheets

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STATE v. HURD

Cite as 307 Neb. 393

Consideration of Charges Dropped 

Pursuant to Plea Agreement.

In his second assignment of error, Hurd assigns that the 

district court erred in relying on allegations originally charged, 

but ultimately dismissed, in order to sentence him to the maximum sentence allowed for his conviction.

The State relied on State v. Janis 9 to support its position that 

it was not an abuse of discretion for the district court to consider dismissed charges when sentencing a defendant:

“It must be assumed, we think, that a trial judge knows 

the difference between information that is pertinent to the 

issue before him and that which is unfounded rumor. The 

law invests a trial judge with a wide discretion as to the 

sources and types of information used to assist him in 

determining the sentence to be imposed within statutory 

limits.” It is hard for us to understand how a trial court 

may properly consider information of the appellant’s 

behavior if no charges are filed, but may not consider the 

underlying facts if a charge is filed and later dismissed, 

not because the facts are untrue, but due to a plea bargain. 

While we do not mean to suggest . . . that a trial court is 

free to consider any matter having no relevance or basis, 

we do mean to say that a trial court is, indeed, given wide 

discretion and where it appears that a sentence imposed 

is within statutory and constitutional limitations, it will 

not be disturbed on appeal in the absence of an abuse of 

discretion on the part of the trial court.

Hurd argues that his case is distinguishable from Janis

because “the district court in this matter improperly concluded that [Hurd] was guilty of a more serious and dismissed 

charge and abused its discretion by excluding consideration 

of a probationary sentence because the court believed that 

[Hurd] would not admit to the more serious charge.” 10 Having 

9 State v. Janis, 207 Neb. 491, 495, 299 N.W.2d 447, 449-50 (1980) (quot

ing State v. Rapp, 184 Neb. 156, 165 N.W.2d 715 (1969)).

10 Brief for appellant at 12.
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. HURD

Cite as 307 Neb. 393

reviewed the district court’s comments made at sentencing, we 

disagree with this characterization.

[5] As noted above, we have observed that a sentencing 

court has wide latitude and discretion to impose any sentence 

within the statutory limits:

“It is a long accepted practice in this state that before 

sentencing a defendant after conviction a trial judge has 

a broad discretion in the source and type of evidence he 

may use to assist him in determining the kind and extent 

of punishment to be imposed within the limits fixed by 

statute. Highly relevant, if not essential, to his determination of an appropriate sentence is the gaining of knowledge concerning defendant’s life, character, and previous 

conduct. In gaining this information, the trial court may 

consider reports of probation officers, police reports, affidavits, and other information including his own observations of the defendant. A presentence investigation has 

nothing to do with the issue of guilt. The rules governing 

due process with respect to the admissibility of evidence 

are not the same in a presentence hearing as in a trial in 

which guilt or innocence is the issue. The latitude allowed 

a sentencing judge at a presentence hearing to determine 

the nature and length of punishment, other than in recidivist cases, is almost without limitation as long as it is 

relevant to the issue.” 11

The sentence imposed was supported by the facts of this 

case and the victim’s statement, and it was within the district 

court’s discretion. Hurd’s second assignment of error is without merit.

CONCLUSION

We affirm the judgment of conviction and the sentence of 

the district court.

Affirmed.

11 Rapp, supra note 9, 184 Neb. at 157-58, 165 N.W.2d at 716.