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300 Nebraska Reports

STATE v. THIESZEN

Cite as 300 Neb. 112

State of Nebraska, appellee, v. 

Sydney L. Thieszen, appellant.

___ N.W.2d ___

Filed June 1, 2018. No. S-17-539.

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: Evidence. A sentencing court has broad discretion as to 

the source and type of evidence and information which may be used 

in determining the kind and extent of the punishment to be imposed, 

and evidence may be presented as to any matter that the court deems 

relevant to the sentence.

4. Sentences. 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.

5. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in 

considering and applying the relevant factors as well as any applicable 

legal principles in determining the sentence to be imposed.

6. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) 

mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, 

and (6) motivation for the offense, as well as (7) the nature of the 

offense and (8) the amount of violence involved in the commission of 

the crime.

Nebraska Supreme Court Online Library

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

08/10/2018 09:09 AM CDT
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7. ____. Where a defendant was under the age of 18 when he or she committed a Class IA felony, Neb. Rev. Stat. § 28-105.02 (Reissue 2016) 

dictates that the sentencing judge must also consider mitigating factors, 

such as the defendant’s (1) age at the time of the offense, (2) impetuosity, (3) family and community environment, and (4) ability to appreciate 

risks and consequences of the conduct, as well as (5) the outcome of a 

comprehensive mental health evaluation of the defendant conducted by 

an adolescent mental health professional licensed in Nebraska.

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

Stecker, Judge. Affirmed.

Jeffery A. Pickens, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

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

Papik, JJ., and Vaughan, District Judge.

Cassel, J.

I. INTRODUCTION

A court sentenced Sydney L. Thieszen to life imprisonment for a murder he committed at age 14. Pursuant to Miller 

v. Alabama,

1

 Thieszen obtained postconviction relief. The 

court resentenced Thieszen to 70 years’ to life imprisonment. 

Because we find no abuse of discretion by the court, we affirm 

Thieszen’s sentence.

II. BACKGROUND

1. Crime and Direct Appeal

The facts and circumstances pertaining to Thieszen’s crimes 

are set out in greater detail in our decision resolving his 

direct appeal.2 In 1987, 14-year-old Thieszen shot and killed 

1 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).

2 See State v. Thieszen, 232 Neb. 952, 442 N.W.2d 887 (1989).
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his 12-year-old sister, Sacha L. Thieszen. The State charged 

Thieszen with first degree murder and use of a firearm in the 

commission of a felony. Pursuant to a plea bargain, Thieszen 

pled guilty to second degree murder and the use of a firearm 

charge. In 1988, the district court imposed a sentence of life 

imprisonment for second degree murder and a consecutive 

sentence of 80 to 240 months’ imprisonment for the firearm conviction.

On appeal, Thieszen claimed that the district court abused 

its discretion in refusing to transfer his case to juvenile court 

and in imposing an excessive sentence on the firearm charge. 

We disagreed. We recognized that there was evidence Thieszen 

could possibly be successfully rehabilitated during the approximately 4 years that the juvenile court maintained jurisdiction 

over him, but that the record also supported the court’s findings that the crime was violent and that Thieszen may require 

treatment beyond the age of majority.3 We noted that the 

sentence for the firearm conviction was within the statutory 

limits, and we could not say that the court abused its discretion 

in imposing it.4

2. First Postconviction

and Retrial

In 1994, Thieszen filed a motion for postconviction relief, 

alleging that the operative information was defective because 

it failed to allege he acted with malice. The district court sustained the motion and vacated Thieszen’s convictions.

The State then filed a second amended information which 

charged Thieszen with first degree murder and use of a firearm 

to commit a felony. A jury convicted Thieszen of the charges. 

The court again imposed sentences of life imprisonment for 

the murder conviction and a consecutive term of 80 to 240 

months’ imprisonment for the use of a firearm conviction.

3 See id.

4 See id.
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3. Second Postconviction

(a) Initial Proceedings

In 2013, Thieszen filed a motion for postconviction relief 

pursuant to the decision in Miller.

5

 The district court vacated 

Thieszen’s life sentence, and the State appealed. We affirmed 

the judgment and remanded the cause for resentencing.6

(b) Mitigation Hearing

In March 2017, the district court received extensive evidence during a mitigation hearing.

Thieszen was born into an abusive environment. His natural mother was an alcoholic. On one occasion while she 

was intoxicated, she tried to burn Thieszen’s eyes out with 

a lighter. She stomped on him at one time. When Thieszen 

was 2 or 3 years old, she threw him in a swimming pool. She 

tried to run his hand through a meat grinder. Thieszen’s natural mother also smashed his toys as punishment and locked 

him in closets. When Thieszen was approximately age 4, he 

was removed from his natural mother’s custody due to abuse 

and neglect.

After multiple foster care placements, Thieszen was placed 

with Edwin and Joyce Thieszen. Edwin and Joyce adopted 

Thieszen when he was 9 years old. At that time, Edwin and 

Joyce had three biological children and two other adopted 

children. Initially, Thieszen wanted to keep his distance from 

the family. But after approximately 1 year, he became very 

lovable and outgoing.

Although Edwin and Joyce offered a stable and structured 

environment, it may not have been a nurturing one. A doctor 

who evaluated Thieszen in connection with the adoption process expressed some reservation that the family’s strong religious beliefs may be too restrictive for a child with Thieszen’s 

background. Edwin and Joyce believed in corporal punishment 

5 Miller v. Alabama, supra note 1.

6 See State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871 (2016).
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for rule violations. Edwin testified that he spanked the children when no other punishment worked and that he used his 

hand, a belt, a hose, or “whatever was handy.”

When Thieszen was 12 years old, there was “a sudden 

drastic change in his behavior.” His report cards reflected 

much lower grades, he ceased performing his chores properly, 

and he began shooting holes in the family’s buildings and 

machinery. In January 1986, Thieszen began seeing Sandra 

Kroeker, a counselor, due to concerns about his poor grades 

and dishonesty. Kroeker felt that there was a great correlation between Thieszen’s adolescent behavior and the abusive 

relationship Thieszen had with his natural mother. Kroeker 

diagnosed Thieszen with a conduct disorder. She testified that 

Thieszen was immature in his ability to formulate and maintain 

relationships, to express himself, to engage in effective decisionmaking, and to control impulses.

In December 1986, the family learned that Thieszen had 

been sexually molesting one of the family’s foster children. 

After that point, Thieszen did not feel loved or wanted by his 

family. And he felt ostracized at school because the children 

there knew of his sexual assault on his foster sister.

There was also evidence of voyeuristic behavior. One of 

Thieszen’s sisters testified that she noticed him watching her 

as she sunbathed. He pried open the doorjamb on the bathroom and would consistently be outside the bathroom door 

while she was showering or changing. At one point, Thieszen 

entered her bedroom during the middle of the night and lifted 

her bed covers.

By the time Thieszen was 13 or 14 years old, he did not 

have a good relationship with Joyce. He did not feel comfortable discussing issues with her. One of Thieszen’s classmates 

testified that Thieszen often spoke about killing Joyce.

On the day of the murder, Thieszen wanted to run away 

from home because he knew he was going to be punished 

for a wrongdoing. When Sacha tried to stop Thieszen, he hit 

her with a wooden rod, which caused bleeding. Sacha ran up 
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the stairs to the bathroom, and as she was leaning over the 

sink, Thieszen shot her in the back of the head. He put her 

body in the bathtub and shot her twice more. Thieszen then 

took the family’s van and left. He was apprehended in Kansas 

days later.

The court received the testimony of two psychiatrists that 

had been offered in connection with Thieszen’s request to 

transfer his criminal case to juvenile court. One psychiatrist 

opined that Thieszen was competent to stand trial and that he 

was sane at the time of the offense. He found significance in 

the type of abuse that Thieszen had experienced as a very small 

child and the number of foster homes that he had been in prior 

to adoption. He testified that Thieszen had a conduct disorder, meaning that he displayed behavior that was not socially 

acceptable. The other psychiatrist, who interviewed Thieszen 

in December 1987, testified that Thieszen was not psychotic 

and was of average to slightly above-average intelligence.

Dr. Kayla Pope, a board-certified child and adolescent psychiatrist, testified at the mitigation hearing. She testified that 

neuroscience research demonstrated that adolescent brains 

were different from adult brains. Adolescent brains were in 

“developmental transition” and were “characterized by novelty seeking, risk taking, poor judgment and increased submission to peer pressure.” Pope explained that the prefrontal 

cortex, which was the last part of the brain to develop, was 

the part of the brain that overrides impulsive behavior and 

allows the weighing of the risks and benefits of the decisions 

one makes. Pope testified that there are significant differences between the brains of a 14-year-old and a 17-year-old. 

According to Pope, adolescents “are thinking in the moment” 

and lack the ability to see the long-term consequences of 

their actions.

Pope testified that high levels of stress can impact brain 

development. Early trauma would impair a child’s developmental process. According to Pope, abuse by Thieszen’s natural mother would interfere with the formation of a secure 
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attachment and would make Thieszen “untrusting” and “emotionally and behaviorally very disregulated not knowing how 

to respond to his environment.” Pope testified that Thieszen’s 

early trauma and multiple placements in foster care affected 

“how he would see the world and how he would respond to 

the world.” And due to Thieszen’s experience of being abused 

by his natural mother, Pope testified that corporal punishment 

would be very inappropriate and would likely bring up prior 

trauma and “make [Thieszen] more reactive as opposed to 

helping him calm down and think through the situation.”

Pope reported that there was ample evidence that Thieszen 

was impetuous beyond what was normal for his chronological age. She testified that Thieszen was very immature, 

impulsive, and unable to calm himself at the time of the murder. Pope believed Thieszen was behaving in an impulsive 

way at the time of the murder and that he did not appreciate the consequences of what he was doing. She reported 

that Thieszen “struggled to modify his behavior in light of 

the consequences he faced.” She noted that Edwin stated 

Thieszen would repeatedly misbehave and would say that he 

did not know why he did the things he did. As to Thieszen’s 

intellectual capacity, Pope testified that he had a very high 

IQ. But she explained that intelligence is the ability to know 

things and to figure things out; it is not a marker for development or maturity.

Pope performed a comprehensive mental health evaluation. 

With regard to Thieszen’s prenatal history, Pope had concern 

that his natural mother may have used drugs and alcohol 

while pregnant, which would impact Thieszen’s brain development and behavior. She testified that Thieszen had no significant medical history and no substance abuse history prior 

to the murder.

Pope testified that Thieszen had many infractions during 

his first few years in prison, but that there was a “precipitous drop” in those infractions as he aged. She saw no evidence that Thieszen engaged in aggression or violent sexual 
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behavior while incarcerated. Pope testified that Thieszen did 

not meet criteria for any mental health issue. She did not 

believe Thieszen had an antisocial personality disorder, stating that there was no evidence of any antisocial behavior in 

the past 30 years. Pope testified that Thieszen had earned 

his diploma through the GED program, had taken additional 

coursework, and had been helping other inmates with their academic pursuits. Although there was evidence that Thieszen had 

engaged in substance abuse while in prison, his last infraction 

for it was in 2000. Pope testified that Thieszen had over 200 

misconduct reports, but that many were for minor violations, 

such as tattooing activities or having items not permitted in his 

cell. Records showed that as of January 18, 2017, Thieszen had 

only four misconduct reports in the previous 5 years. Of those 

reports, the most serious offense was possessing or receiving 

unauthorized articles, for which Thieszen received 7 days of 

room restriction.

Pope testified that Thieszen had formed several significant 

relationships that he had kept for several years. This demonstrated his ability to form a support network and to cultivate 

relationships that would help sustain him in the community. 

And Pope testified that it was remarkable Thieszen had such 

ability, because he had difficulty forming attachments early 

in development, and that his ability to form such relationships 

now is an indication of his emotional maturity. Pope testified 

that Thieszen expressed remorse for the crime.

Dr. Kirk Newring performed a psychological evaluation 

of Thieszen. On a diagnostic tool to assess violence risk and 

psychopathy, Thieszen scored a 12, which was higher than the 

community average of 6, but lower than the typical inmate 

score of 22. Newring testified that individuals with scores 

below 20 typically are not considered psychopathic. Newring 

administered a personality inventory, which did not reveal any 

major mental health problems. A tool to measure intelligence 

showed that Thieszen had an average to above-average IQ. 

Based on a violence risk assessment, Newring placed Thieszen 
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at a low risk for future acts of violence. A violence risk assessment tool showed that Thieszen “had some protective factors 

present, which is predictive of a favorable response to community transition.” Those factors were intelligence, empathy, 

coping skills, and self-control.

Newring’s diagnostic impressions were adjustment disorder with anxiety and antisocial personality disorder. Newring 

explained that Thieszen met the criteria for a diagnosis of antisocial personality disorder but cautioned that Thieszen had not 

shown any of that criteria in the last decade.

Newring did not administer any sex offender assessment 

tools because Thieszen, from the age of 18, had no sexrelated misconduct reports or charges. According to Newring, 

Thieszen reported engaging in physical intimacies with female 

staff members over the course of his incarceration. Newring 

testified that those relationships would be potentially unhealthy 

if they were still occurring, but that Thieszen described them 

as “historical.”

In 2014, Newring administered a self-report measure to 

assess the likelihood of substance abuse dependence. Based on 

the testing, Newring had concerns that Thieszen would meet 

criteria for cannabis use disorder.

Newring testified that Thieszen expressed remorse, regret, 

and sorrow for his crime. According to Newring, Thieszen 

“was likely in a very emotionally aroused situation and not 

able to do rational, cognitive thinking that we would expect to 

see in a cold logic situation.” Newring explained that an emotionally aroused 14-year-old is different from a coldly logical 

14-year-old and that a 14-year-old is much different from an 

18-year-old. Newring asked Thieszen what, if anything, would 

he change, and Thieszen answered that he would have told the 

judge he did not want to be adopted by Edwin and Joyce.

A corrections officer at the prison who sees Thieszen on 

nearly a daily basis testified that Thieszen was “[p]robably” a 

good inmate. According to the officer, Thieszen did not cause 

trouble and was respectful to corrections officers and other 
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inmates. The officer further testified that Thieszen “just always 

does everything he’s supposed to do” and that “[i]f you tell him 

to do something, he does it.” According to the officer, Thieszen 

knits, crochets, exercises, and paints. He testified that Thieszen 

has many visitors. Five individuals wrote letters in strong support of Thieszen. A few of those individuals attached pictures 

of Thieszen’s artwork and craftwork.

(c) Resentencing

At the time of resentencing, Thieszen was 44 years old and 

had been incarcerated since 1987. Before imposing a sentence, 

the court addressed the factors set forth in Neb. Rev. Stat. 

§ 28-105.02(2) (Reissue 2016). The court sentenced Thieszen 

to 70 years’ to life imprisonment for first degree murder, to be 

served consecutively to the sentence he was currently serving 

of 80 to 240 months’ imprisonment for the firearm conviction.

Thieszen filed a timely appeal.

III. ASSIGNMENTS OF ERROR

Thieszen assigns, reordered, that the district court abused its 

discretion in (1) failing to strike certain letters from the presentence report, (2) allowing improper victim impact testimony 

at the sentencing hearing, (3) imposing an excessive sentence, 

(4) imposing a de facto sentence of life imprisonment without 

parole in the absence of a finding of irreparable corruption, and 

(5) imposing a disproportionate sentence upon him.

IV. 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.7 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.8

7 State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018).

8 Id.
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V. ANALYSIS

1. Letters in Presentence Report

During the resentencing hearing, Thieszen’s counsel asked 

that a number of letters in the presentence report be stricken. 

He did not believe it was appropriate for the court to receive 

letters from anonymous sources, and the court responded that 

it would not consider anonymous letters. Thieszen’s counsel 

also requested that the court not consider specific information in letters that was baseless or inflammatory. The court 

stated that it would give such a letter “the weight and credibility that it’s due and disregard any portions not supported 

by the record.”

On appeal, Thieszen argues that the court abused its discretion by overruling his objections to letters which were 

submitted by anonymous sources, which contained baseless 

information, or which were intended to intimidate the judge 

and encourage the imposition of an inappropriate sentence. We 

disagree for two main reasons.

First, to some extent, the court granted the relief Thieszen 

requested. The court stated that it would not consider unsigned 

letters. The presentence report shows that the court struck a 

number of letters. With regard to letters to which Thieszen 

objected but which the court did not strike, the court stated that 

it would give each letter the weight and credibility it was due 

and that it would disregard portions that were not supported by 

the record.

[3] Second, a sentencing court has broad discretion as to the 

source and type of evidence and information which may be 

used in determining the kind and extent of the punishment to 

be imposed, and evidence may be presented as to any matter 

that the court deems relevant to the sentence.9 We cannot say 

that the court abused its broad discretion in declining to strike 

all of the letters to which Thieszen objected.

9 State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
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2. Victim Impact Testimony

The State informed the court that one of Thieszen’s sisters wished to read a letter to the court under Neb. Rev. Stat. 

§ 81-1848 (Cum. Supp. 2016). Thieszen’s counsel objected on 

the basis that the sister is not a “victim” under the statute. But 

the court stated that it would “give her an opportunity to read 

her letter as an immediate family member.”

A statute sets forth rights for victims of crimes.10 Such a 

victim has the right to submit a written impact statement at sentencing or to read his or her impact statement at sentencing.11

But the statute gives such rights to “victims” as defined by 

Neb. Rev. Stat. § 29-119 (Reissue 2016). Under § 29-119(2)(b), 

a victim in the case of a homicide is “the nearest surviving 

relative under the law as provided by section 30-2303 but does 

not include the alleged perpetrator of the homicide.”

Thieszen contends that the court abused its discretion 

in allowing improper victim impact testimony. Because 

Thieszen’s parents are alive, Thieszen contends that they, but 

not his sister, had the right to read their impact statements 

at sentencing.

We rejected a similar challenge in State v. Galindo.

12 In that 

case, the defendant objected to victim impact statements on 

the ground that not all of the family representatives qualified 

as a “nearest surviving relative” under § 29-119. The sentencing court overruled the objection, and we found no error. We 

stated: “The definition of ‘victim’ upon which [the defendant] relies merely provides for a baseline right, under the 

[Nebraska Crime Victim’s Reparations Act], to give a victim 

impact statement. The [act] does not seek to limit the sentencing court’s traditional discretion to consider evidence from 

a variety of sources.”13 Because we continue to believe this 

10 See § 81-1848.

11 See § 81-1848(1)(d)(vii).

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

13 Id. at 670, 774 N.W.2d at 245.
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reasoning is sound, we decline Thieszen’s invitation to overrule that aspect of Galindo.

The court did not abuse its discretion in allowing an oral 

statement from Thieszen’s sister. The State advised the court 

that the victims as defined in § 29-119—i.e., Edwin and 

Joyce—“are elderly, they live out of state and for various reasons don’t want to participate in the process.” It was not untenable for the court to allow the victims’ daughter to be heard 

instead. This assignment of error lacks merit.

3. Excessiveness of Sentence

Thieszen’s primary complaint on appeal is that his sentence 

is excessive for various reasons. The court imposed a sentence of 70 years’ to life imprisonment. The sentence is within 

the statutory limits of 40 years’ to life imprisonment.14 But 

Thieszen contends that the court abused its discretion in imposing the sentence.

Thieszen begins by comparing his sentence to that imposed 

in State v. Jackson.

15 In that case, the victim died of multiple 

gunshot wounds. The State filed identical informations against 

the defendant and two others, charging each with first degree 

murder and use of a deadly weapon during the commission of 

a felony. At the time of the murder, the defendant was nearly 

18 years old. A jury found the defendant guilty of murder but 

not guilty of the weapon charge, and the court imposed a sentence of life imprisonment. Because the defendant was under 

18 years old at the time of the murder, he was later resentenced to 60 to 80 years’ imprisonment. Thieszen points out 

that he was younger than the defendant in Jackson, but that the 

defendant in Jackson received a lesser sentence.

[4] The lesser sentence imposed in Jackson does not persuade us that Thieszen’s sentence constitutes an abuse of discretion. Significantly, there were questions about the defendant’s 

14 See § 28-105.02(1).

15 State v. Jackson, 297 Neb. 22, 899 N.W.2d 215 (2017).
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level of participation in Jackson. Here, there is no dispute that 

Thieszen murdered Sacha. But more importantly, we do not 

“‘color match’” sentences.16 It would be virtually impossible 

to find two murder cases which are the same in all respects.17

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.18 The fact that a 

different offender with a different background received a lesser 

sentence for a crime committed under different circumstances 

does not mean that Thieszen’s sentence was excessive.

[5-7] Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether the sentencing court abused its discretion 

in considering and applying the relevant factors as well as any 

applicable legal principles in determining the sentence to be 

imposed.19 In determining a sentence to be imposed, relevant 

factors customarily considered and applied are the defendant’s 

(1) age, (2) mentality, (3) education and experience, (4) social 

and cultural background, (5) past criminal record or record 

of law-abiding conduct, and (6) motivation for the offense, 

as well as (7) the nature of the offense and (8) the amount of 

violence involved in the commission of the crime.20 Because 

Thieszen was under the age of 18 when he committed a 

Class IA felony, § 28-105.02 dictates that the sentencing judge 

must also consider mitigating factors, such as the defendant’s 

(1) age at the time of the offense, (2) impetuosity, (3) family 

and community environment, and (4) ability to appreciate risks 

and consequences of the conduct, as well as (5) the outcome 

16 See State v. Ellis, 281 Neb. 571, 613, 799 N.W.2d 267, 302 (2011).

17 Id.

18 State v. Castaneda, 295 Neb. 547, 889 N.W.2d 87 (2017), cert. denied ___ 

U.S. ___, 138 S. Ct. 83, 199 L. Ed. 2d 54.

19 State v. Russell, supra note 7.

20 Id.
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of a comprehensive mental health evaluation of the defendant 

conducted by an adolescent mental health professional licensed 

in Nebraska.21

The district court considered the pertinent sentencing factors. It recognized that Thieszen was 14 years old at the time 

of the offense and that at the time of resentencing, he was 

divorced and had employment through “prison industries.” In 

considering factors under § 28-105.02(2), the court acknowledged that evaluations showed Thieszen was impetuous and 

immature at the time of the offense. However, the court noted 

that Thieszen purchased shells prior to the crime and that 

because his gun had been taken away from him, there “was no 

valid reason for [him] to purchase or possess shells except to 

carry out previous threats to [his] family.” The court observed 

that Thieszen’s natural mother was abusive and that he was 

raised in an abusive environment until age 4. The court stated 

that Edwin and Joyce raised Thieszen in a structured environment, that they disciplined Thieszen to correct his behavior, but 

that Thieszen did not modify his behavior after being caught 

doing something wrong. The court noted that Thieszen had 

above-average intellectual capacity. It recognized that Thieszen 

had never been hospitalized for any mental health reason and 

that Newring indicated Thieszen was well adjusted. We cannot say that the court abused its discretion in its assessment of 

the factors.

We are cognizant of factors militating against Thieszen’s 

culpability for the crime. According to Pope, Thieszen’s traumatic early childhood likely influenced his emotional and 

cognitive development. There was evidence that Thieszen was 

struggling mentally and emotionally prior to the murder and 

that the only treatment provided was occasional therapy sessions. According to Pope, “these factors would have interfered 

with [Thieszen’s] ability to make rational decisions, appropriately consider risks and consequences, and to regulate his 

21 See id.
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behavior and impulses above and beyond the limitations that 

are associated with adolescence.” Pope observed that over 

time, Thieszen had taken on the roles of teacher and advisor to other inmates and to the social network he had formed 

outside of prison. These factors support the imposition of a 

minimum sentence that is less than life imprisonment. The 

court, by setting the minimum sentence at 70 years, imposed 

such a sentence.

Thieszen also claims that his sentence amounted to a de 

facto life sentence and that such a sentence was disproportionate to the offense. According to Thieszen, his sentence of 70 

years’ to life imprisonment means he will not be parole eligible 

until age 53 and, if paroled, he will be on parole for the rest of 

his life. But the sentence provides Thieszen with a “meaningful 

and realistic opportunity to obtain release.”22 We have rejected 

similar claims that a lengthy term-of-years sentence was a de 

facto sentence of life imprisonment,23 and we see no reason to 

revisit that conclusion here.

VI. CONCLUSION

We conclude that the district court did not abuse its discretion in overruling Thieszen’s objections to letters in the presentence report, in allowing Thieszen’s sister to read her victim impact statement at the sentencing hearing, or in imposing 

the sentence. We therefore affirm Thieszen’s murder sentence 

of 70 years’ to life imprisonment.

Affirmed.

22 State v. Smith, 295 Neb. 957, 979, 892 N.W.2d 52, 66 (2017), cert. denied

___ U.S. ___, 138 S. Ct. 315, 199 L. Ed. 2d 208.

23 See, State v. Russell, supra note 7; State v. Smith, supra note 22.