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State of Nebraska, appellee, v.

Anthony P. Dyer, appe

___ N.W.2d ___

Filed October 27, 2017. No. S-16-742.

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. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

3. Sentences: Appeal and Error. A determination of whether there 

are substantial and compelling reasons under Neb. Rev. Stat. 

§ 29-2204.02(2)(c) (Supp. 2015) why a defendant cannot effectively 

and safely be supervised in the community is within the trial court’s 

discretion, and a decision to withhold probation on such basis will not 

be reversed on appeal absent an abuse of discretion.

Petition for further review from the Court of Appeals, Moore,

Chief Judge, and Riedmann and Bishop, Judges, on app

thereto from the District Court for Lancaster County, John A

Colborn, Judge. Judgment of Court of Appeals affirmed

Mark E. Rappl for appellant.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, 

and, on brief, George R. Love for appellee.

Heavican, C.J., Wright, Miller‐Lerman, Cassel,

Kelch, and Funke,

Nebraska Supreme Court Online Library

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

11/22/2017 08:10 PM CST
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Per Curiam

NATURE OF CASE

Anthony P. Dyer pled no contest to a charge of enticement 

by electronic communication device in the district court for 

Lancaster County. The court sentenced Dyer to 2 years’ imprisonment and 12 months’ postrelease supervision. Dyer appealed 

his sentence to the Nebraska Court of Appeals and claimed 

that the district court had imposed an excessive sentence. Dyer 

argued that because the charge to which he pled was a Class IV 

felony, Neb. Rev. Stat. § 29-2204.02 (Supp. 2015) required the 

court to impose a sentence of probation unless there were substantial and compelling reasons why he could not effectively 

and safely be supervised in the community. Dyer asserted that 

the district court in this case failed to articulate such substantial and compelling reasons. The Court of Appeals rejected 

Dyer’s arguments and affirmed the sentence imposed by the 

district court. State v. Dyer, 24 Neb. App. 514, 891 N.W.2d 

705 (2017).

We granted Dyer’s petition for further review. Although we 

clarify the standards with respect to sentencing pursuant to 

§ 29-2204.02, we agree with the Court of Appeals’ ultimate 

determination that the district court did not abuse its discretion, and we therefore affirm the Court of Appeals’ disposition 

of this appeal.

STATEMENT OF FACTS

Dyer pled no contest to a charge of enticement by electronic 

communication device pursuant to a plea agreement in which 

the State agreed not to pursue any additional charges arising 

out of the underlying investigation. The factual basis for the 

plea was, generally, that on November 17 and 18, 2015, Dyer, 

who was 30 years old at the time, communicated online and 

through text messages with an investigator Dyer believed to be 

a 13-year-old girl. The communications included discussion of 

sexual activity, and Dyer sent a picture of his genitalia to the 

investigator. Dyer arranged a meeting at a specific location, 
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and he was arrested when he arrived at the arranged meeting 

place. The court accepted the plea.

Thereafter, the district court sentenced Dyer to 2 years’ 

imprisonment and 12 months’ postrelease supervision. In its 

sentencing order, the court stated that it found, “pursuant to 

NEB. REV. STAT. § 29-2260 [(Supp. 2015)],” that

substantial and compelling reasons, as checked on the 

attached sheet, exist why the defendant cannot effectively and safely be supervised in the community on 

probation and that imprisonment of the defendant is necessary for the protection of the public because the risk 

is substantial that, during any period of probation, the 

defendant would engage in additional criminal conduct 

and because a lesser sentence would depreciate the seriousness of the defendant’s crime and promote disrespect 

for the law.

The sheet that was attached to, and referenced in, the order 

stated: “Pursuant to Neb. Rev. Stat. § 29-2260, the court 

finds the following substantial and compelling reasons (those 

checked) why the defendant cannot effectively and safely be 

supervised in the community on probation[.]” Thereunder were 

listed 21 generically phrased reasons; the court had placed an 

“X” next to the following 5 of the 21 reasons: (1) “A lesser 

sentence would depreciate the seriousness of the crime”; (2) 

“[a] lesser sentence would promote disrespect for the law”; (3) 

“[i]ncarceration is necessary to protect the safety and security 

of the public, including the victim(s) in this case”; (4) “[t]he 

crime caused or threatened serious injury or harm”; and (5) 

“[t]he circumstances indicate that the defendant understood 

the consequences of his or her actions and the potential harm 

to others.”

At the sentencing hearing, which was held the same day 

the sentencing order was entered, the court stated that in 

determining the appropriate sentence, it had considered the 

comments of Dyer and his attorney and the information on 

Dyer’s behalf that was included in the presentence report. The 
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court stated that it could not ignore “the serious nature of this 

offense and all of the surrounding facts and circumstances,” 

and it recounted various factors it considered. These included 

the benefits to Dyer of the plea agreement, the results of testing and evaluation of Dyer, and specific facts and circumstances surrounding the offense Dyer committed. The court 

then stated that it found substantial and compelling reasons 

why Dyer could not be effectively and safely supervised in the 

community on probation. The court’s comments at the sentencing hearing regarding substantial and compelling reasons 

were virtually identical to the comments set forth above that 

were included in the sentencing order.

Dyer appealed to the Court of Appeals, and his sole assignment of error was that the district court imposed an excessive 

sentence. He argued that the court failed to articulate substantial and compelling reasons, beyond the nature of the crime 

itself, why probation would not be appropriate. The Court of 

Appeals rejected Dyer’s arguments and affirmed. State v. Dyer, 

24 Neb. App. 514, 891 N.W.2d 705 (2017).

The Court of Appeals found no abuse of discretion in the 

sentence imposed. The Court of Appeals noted that under 

Neb. Rev. Stat. § 28-833 (Reissue 2016), enticement by 

electronic communication device is a Class IV felony, and 

that the maximum sentence for a Class IV felony is 2 years’ 

imprisonment and 12 months’ postrelease supervision. The 

sentence imposed was within the statutory limits. The Court 

of Appeals also noted that § 29-2204.02, which we quote later 

in the opinion, provides that if a defendant is convicted of a 

Class IV felony, the court shall impose a sentence of probation unless there are substantial and compelling reasons why 

the defendant cannot effectively and safely be supervised in 

the community. The Court of Appeals further noted that the 

determination of whether “substantial and compelling reasons” are present under § 29-2204.02 shall be made by reference to, but not limited to, the criteria set forth in Neb. Rev. 

Stat. § 29-2260(2) and (3) (Supp. 2015), which list grounds 
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which shall be accorded weight either in favor of or opposed 

to probation.

With these statutes in mind, the Court of Appeals rejected 

Dyer’s argument to the effect that the district court abused 

its discretion when it withheld probation based solely on the 

nature of the crime. Dyer had argued that when the Legislature 

enacted § 29-2204.02 and related statutes, it intended a presumption of probation for Class IV felonies, including enticement by electronic communication device.

The Court of Appeals found Dyer’s argument without merit, 

because (1) § 29-2260 and, consequently, § 29-2204.02 require 

regard for the nature of the offense when considering probation versus imprisonment and (2) the district court in this case 

did not rely solely on the nature of the offense. The Court of 

Appeals determined that the record showed that the district 

court considered not only the nature of the offense generally 

but also the nature of the specific violation in this case, as well 

as factors such as the substantial risk that Dyer would engage 

in criminal conduct while on probation, the risk of a lesser 

sentence depreciating the seriousness of the offense, and the 

risk of promoting disrespect for the law.

As specific facts in the record that supported its determinations, the Court of Appeals noted that Dyer communicated 

with a person he believed to be 13 years old, he set up a meeting with that person, and he followed through by showing 

up at the arranged meeting site with condoms. The Court of 

Appeals also noted that the district court relied on an evaluation which determined that Dyer’s risk for reoffending was 

in the “moderate-high risk category.” The Court of Appeals 

concluded that although Dyer’s sentence was at the maximum, 

it was within the statutory range, and that the district court did 

not abuse its discretion when it imposed a sentence of imprisonment rather than probation.

We granted Dyer’s petition for further review.
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ASSIGNMENT OF ERROR

Dyer claims that the Court of Appeals erred when it affirmed 

the sentence imposed by the district court, and in particular the 

district court’s decision to impose a sentence of imprisonment 

rather than probation.

STANDARDS 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. State v. Jones, 297 Neb. 557, 900 N.W.2d 757 

(2017). A judicial abuse of discretion exists when the reasons 

or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in 

matters submitted for disposition. Id.

[3] A determination of whether there are substantial and 

compelling reasons under § 29-2204.02(2)(c) why a defendant 

cannot effectively and safely be supervised in the community 

is within the trial court’s discretion, and a decision to withhold 

probation on such basis will not be reversed on appeal absent 

an abuse of discretion. See State v. Baxter, 295 Neb. 496, 888 

N.W.2d 726 (2017).

ANALYSIS

The offense for which Dyer was convicted was a Class IV 

felony which occurred on November 17 and 18, 2015. Because 

the relevant portions of § 29-2204.02 became effective August 

30, 2015, the sentencing in this case was subject to the provisions of § 29-2204.02 relating to Class IV felonies. Recently, 

in State v. Baxter, supra, we set forth standards to be followed 

by trial courts when sentencing a defendant for a Class IV 

felony pursuant to § 29-2204.02 and by appellate courts when 

reviewing such sentencing. Because the Court of Appeals did 

not reference Baxter in its published opinion in this case, 

we granted further review to determine whether the Court of 

Appeals’ analysis in this case comports with the principles we 

set forth in Baxter. Although we find it necessary to clarify 
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certain aspects of the Court of Appeals’ analysis, we agree with 

the Court of Appeals’ ultimate conclusion that the district court 

did not abuse its discretion when it sentenced Dyer to 2 years’ 

imprisonment and 12 months’ postrelease supervision.

Dyer’s argument regarding the sentence imposed in this case 

focuses on the district court’s decision to impose a sentence of 

imprisonment rather than probation. Regarding sentencing for a 

Class IV felony, § 29-2204.02 provides in relevant part:

(2) If the criminal offense is a Class IV felony, the 

court shall impose a sentence of probation unless:

(a) The defendant is concurrently or consecutively sentenced to imprisonment for any felony other than another 

Class IV felony;

(b) The defendant has been deemed a habitual criminal 

pursuant to section 29-2221; or

(c) There are substantial and compelling reasons why 

the defendant cannot effectively and safely be supervised 

in the community, including, but not limited to, the criteria in subsections (2) and (3) of section 29-2260. Unless 

other reasons are found to be present, that the offender 

has not previously succeeded on probation is not, standing alone, a substantial and compelling reason.

(3) If a sentence of probation is not imposed, the 

court shall state its reasoning on the record, advise the 

defendant of his or her right to appeal the sentence, and 

impose a sentence as provided in subsection (1) of this 

section.

Subsections (2)(a) and (b) of § 29-2204.02 were not relevant 

in this case, and therefore the district court’s decision to withhold a sentence of probation and to sentence Dyer to imprisonment was based on its finding of substantial and compelling 

reasons to do so under subsection (2)(c).

Dyer argues that the Court of Appeals misconstrued 

the intent of § 29-2204.02 and related statutes which, he 

argues, require a presumption of probation. He also argues 

that § 29-2204.02 and related statutes put the focus on 
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the characteristics of the defendant and why that particular defendant is not a proper candidate for probation. He 

contends that certain factors upon which the district court 

focused, such as “depreciate the seriousness of the crime” 

and “promote disrespect for the law,” incorrectly focused on 

the nature of the crime rather than the specific defendant. The 

Court of Appeals found no merit to Dyer’s arguments.

In State v. Baxter, 295 Neb. 496, 504, 888 N.W.2d 726, 

733 (2017), although we did not use a phrase stating that 

“§ 29-2204.02(2) creates a presumption of probation” as 

the proper sentence for a Class IV felony, we did note that 

“§ 29-2204.02(2) effectively adds a general limitation on a 

court’s discretion in choosing between probation and incarceration with respect to a Class IV felony, because it requires 

a court to impose a sentence of probation for a Class IV 

felony unless certain specified exceptions are present.” While 

in Baxter we indicated that § 29-2204.02 requires a sentence 

of probation in the absence of one or more of the specified 

exceptions, we also stated that the trial court has discretion to 

determine the existence of the exception for “substantial and 

compelling reasons” set forth in § 29-2204.02(2)(c). But to 

the extent that the Court of Appeals in this case did not recognize that § 29-2204.02 “tips the balance . . . toward probation” 

in Class IV felonies, see Baxter, 295 Neb. at 506, 888 N.W.2d 

at 734, we disapprove of its reasoning.

Dyer’s argument that § 29-2204.02(2)(c) puts the focus 

on the characteristics of the defendant has some support in 

the text of the statute. Section 29-2204.02(2)(c) specifies 

that the court must find “substantial and compelling reasons 

why the defendant cannot effectively and safely be supervised in the community.” Such phrase focuses on the characteristics of the defendant and whether such characteristics 

indicate that the particular defendant cannot effectively and 

safely be supervised in the community. But the statute at 

§ 29-2204.02(2)(c) continues by stating that such substantial 

and compelling reasons include, but are not limited to, “the 
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criteria in subsections (2) and (3) of section 29-2260,” and 

§ 29-2260 includes traditional sentencing criteria, including 

consideration of the nature of the crime. Therefore, the appropriate considerations under § 29-2204.02(2)(c), when deciding 

whether the defendant can effectively and safely be supervised 

in the community, include the traditional reasons that a court 

is to consider when deciding whether to impose a sentence of 

imprisonment or a sentence of probation.

As relevant to Dyer’s argument in the present case, one 

criterion set forth in § 29-2260(2) includes: “(c) A lesser sentence will depreciate the seriousness of the offender’s crime 

or promote disrespect for law.” Thus, contrary to Dyer’s 

argument that such considerations are inappropriate because 

they focus on the nature of the crime rather than the specific 

defendant, the Legislature determined in § 29-2204.02(2)(c) 

that such criteria are and remain relevant to determining 

whether the defendant can effectively and safely be supervised 

in the community.

Dyer further argues that the Court of Appeals’ decision is 

not consistent with State v. Baxter, 295 Neb. 496, 888 N.W.2d 

726 (2017), because the district court did not state its reasoning on the record, but instead merely supplied a list of reasons 

without articulating how the record supported such reasons. In 

Baxter, we were differentiating between § 29-2204.02(2)(c), 

which requires “substantial and compelling reasons” in order 

not to grant probation, and § 29-2204.02(3), which requires 

that “the court shall state its reasoning on the record” as to why 

probation is denied. As explained in Baxter, the court’s reasons 

could also be understood as its reasoning if sufficiently articulated by the court “on the record” when it pronounces sentence 

or by the court’s sentencing order. Applying these standards 

to our review of the sentencing in this case, we note that in 

its sentencing order, the district court, having listed what it 

found to be substantial and compelling reasons why Dyer 

“cannot effectively and safely be supervised in the community 

on probation,” found that “imprisonment of the defendant is 
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necessary for the protection of the public.” The reasons set 

forth by the district court were all valid considerations under 

the language of § 29-2204.02(2)(c).

Although the sentencing order itself merely listed the 

reasons and did not provide the “reasoning” required by 

§ 29-2204.02(3), the district court’s comments at the sentencing hearing filled in the missing pieces of the court’s reasoning. The court noted specific findings from the record which 

we recognize as supporting its determination that substantial and compelling reasons against probation existed under 

§ 29-2204.02(2)(c). We note that at the time the district court 

sentenced Dyer, it did not have the benefit of our decision in 

Baxter, and therefore the district court was not as explicit in 

showing its reasoning as a court would be in light of Baxter. 

However, through its comments at the sentencing hearing when 

combined with the sentencing order, the court set forth the 

substantial and compelling reasons that it found to exist and 

it set forth information from the record that supported such 

reasons. On appeal, we can connect the court’s observations as 

contained in the record to its finding of substantial and compelling reasons, and we see that the record as a whole supports 

the court’s findings. We therefore conclude that the district 

court did not abuse its discretion when it determined that there 

were substantial and compelling reasons why Dyer could not 

effectively and safely be supervised in the community and 

when it therefore imposed a sentence of imprisonment rather 

than probation.

Finally, although Dyer’s arguments in support of further 

review focus on the district court’s decision to impose a term 

of imprisonment rather than probation, we also find no error 

in the Court of Appeals’ determination that the district court 

did not abuse its discretion with regard to the length of the 

sentence it imposed.

CONCLUSION

Although we clarify certain standards relating to a sentencing decision under § 29-2204.02, we agree with the Court 
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of Appeals’ ultimate determination that the district court did 

not abuse its discretion when it sentenced Dyer to imprisonment in this Class IV felony. We therefore affirm the Court of 

Appeals’ disposition of this appeal.

Affirmed

Miller‐Lerman, J., concurri

I agree with the conclusion that the district court did not 

abuse its discretion when it sentenced Anthony P. Dyer to 

2 years’ imprisonment and 12 months’ postrelease supervision. I write separately to emphasize certain points regarding 

the requirements under Neb. Rev. Stat. § 29-2204.02 (Supp. 

2015), with respect to a court’s decision whether to impose 

a sentence of probation or a sentence of imprisonment when 

the defendant has been convicted of a Class IV felony. With 

certain exceptions, § 29-2204.02 generally requires a court to 

impose a sentence of probation for a Class IV felony. See State 

v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017). These statutory requirements relative to sentencing for a Class IV felony 

differ significantly from the same decision when the defendant 

has been convicted of a felony of a different class.

In Neb. Rev. Stat. § 29-2260(2) (Supp. 2015), the Legislature 

provided that when a defendant is convicted of “a misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is not specifically required,” the sentencing 

court generally has discretion to impose a sentence of probation rather than a sentence of imprisonment. The statute sets 

forth factors that, while not controlling the court’s discretion, 

would support a sentence of probation. But § 29-2260(2) limits 

the court’s discretion to impose a sentence of probation when 

the court has found that for certain reasons, “imprisonment of 

the offender is necessary for protection of the public.”

When the Legislature enacted § 29-2204.02 as part of 

2015 Neb. Laws, L.B. 605, it chose to set Class IV felonies 

apart from other types of crimes with regard to the decision 

whether to impose a sentence of imprisonment or a sentence of 
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probation. We stated in Baxter, 295 Neb. at 506, 888 N.W.2d 

at 734, that § 29-2204.02(2) “generally tips the balance in sentencing for a Class IV felony toward probation.” It does so by 

requiring that when the offense is a Class IV felony, “the court 

shall impose a sentence of probation unless” one or more of the 

following is present: (1) The defendant is concurrently or consecutively sentenced to imprisonment for any felony other than 

another Class IV felony, (2) the defendant has been deemed 

a habitual criminal, or (3) there are substantial and compelling reasons why the defendant cannot effectively and safely 

be supervised in the community. § 29-2204.02(2). We further 

stated in Baxter that § 29-2204.02(3) “reinforces this balance 

[favoring probation] by obligating the court to state its reasoning for withholding probation on the record.” 295 Neb. at 506, 

888 N.W.2d at 734.

I turn to the sentencing in this case to illustrate the application of § 29-2204.02 in sentencing for a Class IV felony. 

Pursuant to § 29-2204.02(2), the court was required to sentence Dyer to probation unless it found one of the three 

circumstances noted above to be present. In this case, as in 

Baxter, the circumstances set forth in § 29-2204.02(2)(a) 

and (b) were clearly not present, and so the court needed to 

determine under § 29-2204.02(2)(c) whether there were “substantial and compelling reasons why the defendant cannot 

effectively and safely be supervised in the community.” I note 

that although § 29-2204.02(2)(c) provides that such reasons 

include, but are not limited to, “the criteria in subsections 

(2) and (3) of section 29-2260,” § 29-2204.02(2)(c) includes 

two requirements that expand this analysis when sentencing 

for a Class IV felony beyond what would be required under 

§ 29-2260 when sentencing for any other class of felony or for 

a misdemeanor.

First, although the reasons listed in § 29-2260 are appropriate 

considerations under § 29-2204.02(2)(c) and, under § 29-2260, 

the court is required to find only that the reasons exist, 

with respect to a Class IV felony under § 29-2204.02(2)(c), 
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the court must further find that such reasons are “substantial 

and compelling.” Second, while the focus of § 29-2260(2) 

is on determining whether “imprisonment of the offender 

is necessary for protection of the public,” the focus of 

§ 29-2204.02(2)(c) is on determining whether “the defendant 

cannot effectively and safely be supervised in the community.” 

I respectfully suggest that, as Dyer urges, this requirement 

emphasizes the specific characteristics of the defendant rather 

than the general nature of the crime he or she has committed. In my view, the Legislature has taken into account the 

general nature of an offense when it classifies the offense, 

and in § 29-2204.02(2)(c), the Legislature expressed a policy 

that offenses it has classified as Class IV felonies are the ones 

for which probation is generally an appropriate punishment, 

absent specific exceptions relating to the particular defendant. 

In this respect, I recognize that the manner in which a particular defendant committed an offense, in contrast to the general 

nature of the offense, can be indicative of that defendant’s 

individual characteristics and therefore relevant to the analysis 

under § 29-2204.02(2)(c).

In the present case, along with the majority and the 

Nebraska Court of Appeals, I would conclude that the district court did not abuse its discretion when it found under 

§ 29-2204.02(2)(c) that there were substantial and compelling 

reasons why Dyer could not effectively and safely be supervised in the community. In this regard, as I read the record, the 

district court appropriately gave weight to its finding that “the 

risk is substantial that, during any period of probation, [Dyer] 

would engage in additional criminal conduct.”

At the sentencing hearing, the district court noted facts 

which supported this finding. This included evidence that 

Dyer had not only committed the charged offense of enticing by electronic communications a person he thought to be a 

13-year-old, he took the further steps of setting up a meeting 

and followed through by showing up at the arranged meeting place and time. The district court also noted that certain 
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testing showed Dyer to be in the moderate-to-high category 

for risk to reoffend. Although Dyer points to other materials 

indicating that he was at a lower risk, the district court did not 

abuse its discretion when it gave greater credence to the evidence of a higher risk. Taken together, the parts of the record 

noted by the district court supported the finding that there was 

a substantial risk that during a period of probation, Dyer might 

engage in conduct similar to that shown in this case. And, 

more to the point of an analysis under § 29-2204.02(2)(c), I 

believe that such substantial risk constitutes a substantial and 

compelling reason why Dyer in particular could not effectively and safely be supervised in the community. I believe 

this consideration in itself is sufficient to support the district 

court’s decision to withhold probation and impose a term 

of imprisonment; accordingly, I do not think it necessary to 

examine each reason cited by the district court.

As a general matter, I believe that when a factor such as 

“a lesser sentence would depreciate the seriousness of the 

crime and promote disrespect for the law” is cited to support 

a finding under § 29-2204.02(2)(c), the court should take care 

to show that such consideration is a substantial and compelling reason why the specific defendant could not effectively 

and safely be supervised in the community. I recognize that 

such factors, being considerations listed in § 29-2260(2) and 

(3), are ones that the Legislature has deemed to be appropriate considerations under § 29-2204.02(2)(c). However, as 

noted above, the determination with regard to a Class IV 

felony under § 29-2204.02(2)(c) is different from the determination with respect to any other class of offense under 

§ 29-2260. Thus, the court’s invocation of the considerations 

in § 29-2260(2) and (3) must be specific to the defendant 

and his or her specific offense and not a determination that 

the general offense is one that should carry a punishment of 

imprisonment. Such a generalized determination of the appropriate punishment for an offense is for the Legislature to make 

when it classifies a statutory offense, and by classifying an 
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offense as a Class IV felony, the Legislature has indicated 

in § 29-2204.02(2) its determination that such offense is one 

for which probation is generally an appropriate punishment, 

absent specific exceptions.

Finally, I want to note the importance of the “reasoning” 

requirement of § 29-2204.02(3) to the balance the Legislature 

created in the statute. As we stated in State v. Baxter, 295 Neb. 

496, 506, 888 N.W.2d 726, 734 (2017), in § 29-2204.02(2), 

the Legislature “generally tips the balance in sentencing for 

a Class IV felony toward probation” and it “reinforces this 

balance by obligating the court [in § 29-2204.02(3)] to state 

its reasoning for withholding probation on the record.” In this 

case and in Baxter, we have stressed that “reasoning” is more 

than merely a list of reasons. In this case, the district court 

attached to its sentencing order a sort of checklist of potential “substantial and compelling reasons” and checked those 

that it found to be present. A checklist is clearly helpful to a 

court by guiding its analysis of relevant considerations and by 

communicating and summarizing its findings, but in my view, 

courts should not fall into a habit of relying on such a checklist 

as a substitute for the “reasoning on the record” requirement 

of § 29-2204.02(3). Instead, reasoning under § 29-2204.02(3) 

requires analysis of why the record in a specific case supports 

the court’s determination that substantial and compelling reasons exist why the specific defendant cannot effectively and 

safely be supervised in the community; such analysis is not 

fulfilled by a checklist of potential reasons on which certain 

reasons are checked off.

In this case and in Baxter, the requirements of § 29-2204.02 

were still fairly new at the time of sentencing. In our consideration, we have afforded the sentencing courts some leeway 

in how explicitly they articulated the connection between the 

record and the required findings under § 29-2204.02(2)(c), and 

we have affirmed the sentence if the record as a whole supports proper reasoning, even if the court did not explicitly state 

its reasoning as required by § 29-2204.02(3). In the future, it 
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will be more conducive to appellate review if sentencing courts 

explicitly state their reasoning rather than relying on the appellate court to make the connection.

As we indicated in Baxter, the reasoning requirement of 

§ 29-2204.02(3) has the purpose of explaining the court’s 

reasoning to the defendant, and it helps to focus the court’s 

analysis where the court is required to explicitly set forth the 

reasoning behind its findings which support its decision not 

to impose probation. Because § 29-2204.02 tips the balance 

toward probation, as we stated in Baxter, “if the court is having difficulty articulating its reasoning for imposing a sentence 

of imprisonment on the record,” it may suggest that “the court 

should impose a sentence of probation.” 295 Neb. at 506, 888 

N.W.2d at 734.

After having expressed the foregoing cautions, I agree 

with the majority’s conclusion that the district court did not 

abuse its discretion in this case, and I therefore concur that 

the decision of the Court of Appeals on further review should 

be affirmed.