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STATE v. GIBSON

Cite as 26 Neb. App. 559

State of Nebraska, appellant, 

v. Jason T. Gibson, appellee.

___ N.W.2d ___

Filed November 13, 2018. No. A-17-1272.

1. Sentences: Appeal and Error. When reviewing a sentence within the 

statutory limits, whether for leniency or excessiveness, an appellate 

court reviews for an abuse of discretion.

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

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

unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

3. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness 

of the judicial process.

4. Sentences: Judgments. If an oral pronouncement of sentence is invalid 

but the written judgment imposing sentence is valid, the written judgment is looked to and considered controlling.

5. Sentences: Appeal and Error. Neb. Rev. Stat. § 29-2322 (Reissue 

2016) sets forth the factors that an appellate court is to consider when 

reviewing a sentence alleged to be excessively lenient.

6. Sentences. When imposing a sentence, a sentencing judge should consider 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.

7. Sentences: Probation and Parole. Where no mandatory minimum term 

of imprisonment is statutorily required, a term of probation is a viable 

alternative, unless, having regard to the nature and circumstances of 

the crime and the history, character, and condition of the defendant, 

Nebraska Supreme Court Online Library

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

11/13/2018 09:12 AM CST
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Cite as 26 Neb. App. 559

the court finds imprisonment is necessary for protection of the public 

because the defendant is likely to reoffend, the defendant is in need of 

correctional treatment most effectively provided through commitment to 

a correctional facility, or the seriousness of the crime would be depreciated by a lesser sentence.

8. Sentences. To issue a lesser sentence upon a conviction because another 

person may be more culpable detracts from the requirement that the sentencing court consider the nature and circumstances of the present crime 

and the characteristics of the offender before it.

Appeal from the District Court for Sarpy County: Stefanie

A. Martinez, Judge. Sentence vacated, and cause remanded 

with directions.

Phil Kleine, Deputy Sarpy County Attorney, for appellant.

Donald L. Schense, of Law Office of Donald L. Schense, 

for appellee.

Pirtle, Riedmann, and Bishop, Judges.

Riedmann, Judge.

INTRODUCTION

Jason T. Gibson was sentenced to 180 days’ incarceration 

and 5 years’ probation on his conviction for attempted first 

degree sexual assault of a child, a Class II felony. The State of 

Nebraska has appealed the sentence, claiming that the district 

court for Sarpy County abused its discretion in imposing an 

excessively lenient sentence. Because we agree, we vacate the 

sentence, and remand the cause with directions.

BACKGROUND

Gibson was initially charged with first degree sexual assault 

of a child, a Class IB felony which carries a mandatory minimum sentence of 15 years in prison for the first offense. See 

Neb. Rev. Stat. § 28-319.01 (Reissue 2016). In exchange for 

Gibson’s agreement to plead no contest, the State amended 

the charge to attempted first degree sexual assault of a child, a 

Class II felony.
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Cite as 26 Neb. App. 559

At the plea hearing, the State set forth the factual basis 

as follows:

[B]etween December 1st of 2016, and January 31st of 

2017, DeArch Stubblefield was prostituting out an individual by the name of E.L., [born in June 2001]. E.L. 

stated that between December 1st, 2016, and January 31st, 

2017, . . . Stubblefield and her were picked up by a male 

party later identified as . . . Gibson. That male then drove 

them to his house . . . in Sarpy County, Nebraska.

. . . .

[T]here all three parties involved engaged in intercourse, which happened on the couch. During this meeting, money was exchanged after the sexual intercourse. 

The intercourse would include sexual penetration or 

penile penetration of . . . Gibson of E.L.

E.L. was later, during an investigation, shown a photo 

lineup and identified the Defendant, . . . Gibson. . . . 

Gibson was later interviewed and he further admitted 

to having sexual intercourse with E.L. on the couch at 

[this location].

Based upon the above factual basis and a finding that the 

plea was made knowingly, intelligently, and voluntarily, the 

court accepted the plea and found Gibson guilty of attempted 

first degree sexual assault of a child. Gibson agreed to the 

plea despite being incorrectly advised by the district court 

that a Class II felony carried a maximum minimum sentence 

of 1 year’s incarceration. A presentence investigation (PSI) 

was ordered.

The PSI revealed that the present offense was Gibson’s 

first criminal activity for which he was charged. All testing 

and assessments placed him in the low risk to reoffend category. He had been a member of the U.S. Air Force for 16 

years, receiving commendable reviews and numerous honors. 

Upon contact from the police, he immediately admitted his 

acts, although he continually denied that he was aware of 
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Cite as 26 Neb. App. 559

the victim’s true age, claiming that both she and Stubblefield 

admitted to misrepresenting her age.

According to the PSI, Gibson became involved in this incident by responding to a “Craigslist” posting that advertised an 

opportunity to join two other people for a sexual encounter. 

Gibson admitted that he made all arrangements through Dearch 

Stubblefield, the individual who posted the advertisement, 

and that he paid Stubblefield $40 after the sexual encounter. 

Gibson’s description of the encounter discloses that after arriving at Gibson’s house, Stubblefield directed E.L. to take off 

her clothes and that E.L. did not engage in any discussion 

with Gibson during the encounter. The PSI also includes a 

“Memorandum” authored by Gibson and directed to the sentencing court. In it, Gibson points out that he was misled by 

both Stubblefield and E.L. as to their ages and he describes 

what he has lost as a result of this incident, but mentions 

nowhere the effects on the victim, E.L.

At the sentencing hearing, the court stated:

I can hope that the system does what it is designed to do, 

and in my reading of the [PSI], it indicates to me that . . . 

Stubblefield has, in large part, the majority of the responsibility, from the materials I’ve received. And my hope is 

that [E.L.] is given some sort of justice in that sentence, 

most significantly.

The court proceeded to sentence Gibson, stating:

There is [sic] a number of issues that I believe your 

attorney has addressed that qualifies mitigating circumstances in your circumstance in this case. I also agree 

that there is an element of punishment as well for your 

choice in this matter. I do think that you have accepted 

responsibility. I think you appreciate the seriousness of 

your actions, although most probably because you’ve now 

suffered consequences that were not contemplated at the 

time that you made this choice.

The court concluded, “[I]t’s going to be the order and judgment of the Court that you serve a term of incarceration at the 
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Sarpy County Jail for 180 days. There will be a term of probation for five years to be served upon completion of that jail 

time.” A written “Order of Probation (Jail confinement)” was 

entered the same day, sentencing Gibson to 5 years of “[t]raditional” supervised probation, subject to numerous conditions, 

including a 180-day term in the Sarpy County jail. Gibson was 

also ordered to comply with the Sex Offender Registration Act. 

The State timely filed this appeal.

ASSIGNMENTS OF ERROR

The State assigns that the sentence imposed was excessively 

lenient because the district court (1) failed to appropriately 

apply Neb. Rev. Stat. § 29-2322 (Reissue 2016) and (2) based 

its sentence upon improper, impermissible, and nonrelevant 

considerations.

STANDARD OF REVIEW

[1,2] 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.

ANALYSIS

Before addressing the merits of the State’s appeal, we 

address two separate issues: the sentence actually imposed and 

the appropriate statutory provisions to be considered.

Sentence Imposed.

Pursuant to a plea agreement, Gibson was convicted of 

attempted first degree sexual assault of a child, a Class 

II felony. See Neb. Rev. Stat. § 28-201 (Supp. 2017) and 

§ 28-319.01(1). In its oral pronouncement at sentencing, the 

court sentenced Gibson to 180 days in jail, to be followed by 
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5 years of probation. However, Class II felonies are punishable by 1 to 50 years’ imprisonment. Neb. Rev. Stat. § 28-105 

(Supp. 2017). Therefore, if the court intended to sentence 

Gibson to incarceration, it was plain error to do so for less than 

1 year, nor could it sentence him to incarceration and impose 

a subsequent term of probation. See Neb. Rev. Stat. § 29-2260 

(Reissue 2016) (allowing court to impose period of probation 

in lieu of incarceration in certain situations).

[3] Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, 

if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. State v. Vanness, 

300 Neb. 159, 912 N.W.2d 736 (2018). Because the sentence 

pronounced was statutorily unauthorized, it was invalid and 

constitutes plain error.

[4] Despite its oral pronouncement, the court subsequently 

entered an “Order of Probation (Jail confinement)” on the day 

of sentencing. In that order, the court imposed a 5-year probation period and included incarceration for 180 days in the Sarpy 

County jail as a condition of the probation. Such a sentence is 

valid. See § 29-2260. If an oral pronouncement of sentence is 

invalid but the written judgment imposing sentence is valid, the 

written judgment is looked to and considered controlling. State 

v. Brauer, 16 Neb. App. 257, 743 N.W.2d 655 (2007). Because 

the written order is a valid sentence, we determine that Gibson 

was sentenced to probation that included 180 days’ incarceration as a condition thereof.

Applicable Statutory Provisions.

[5] The State assigns that “the sentence imposed was excessively lenient because the Court failed to appropriately apply 

. . . §29-2322.” However, § 29-2322 sets forth the factors that 

an appellate court is to consider when reviewing a sentence 

alleged to be excessively lenient. Those factors include (1) the 

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

imposed to afford deterrence; (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 

that the appellate court deems pertinent.

[6] Section 29-2322 does not govern what factors the sentencing court is to consider, although many of the factors 

overlap. When imposing a sentence, a sentencing judge should 

consider 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. State v. Carpenter, 293 Neb. 860, 880 N.W.2d 

630 (2016).

In the context of this appeal in which the court sentenced 

Gibson to probation, the statute governing a sentencing court’s 

decision to withhold incarceration is also implicated. Section 

29-2260 states:

(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;
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(b) The offender is in need of correctional treatment 

that can be provided most effectively by commitment to a 

correctional facility; or

(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.

The question before us then becomes whether the sentencing court abused its discretion in imposing probation instead 

of sentencing Gibson to incarceration. See State v. Harrison, 

255 Neb. 990, 588 N.W.2d 556 (1999).
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Adequacy of Sentence Imposed.

[7] A Class II felony carries a possible sentence of 1 to 50 

years’ imprisonment, but no mandatory minimum is required, 

although Gibson was erroneously advised during the plea hearing that a mandatory minimum of 1 year existed. Because no 

mandatory minimum was required, a term of probation was 

a viable alternative, unless, having regard to the nature and 

circumstances of the crime and the history, character, and 

condition of Gibson, the court found imprisonment was necessary for protection of the public because Gibson was likely to 

reoffend, he was in need of correctional treatment most effectively provided through commitment to a correctional facility, 

or the seriousness of the crime would be depreciated by a 

lesser sentence. See § 29-2260(2).

The record supports the sentencing court’s decision to 

impose probation in lieu of incarceration based upon Gibson’s 

unlikelihood to reoffend and the availability of treatment; 

however, § 29-2260 requires an additional consideration, 

that being the nature of the crime and whether probation 

would depreciate its seriousness or promote a disrespect of 

the law.

 It is clear from both the factual basis offered in support of 

the plea and the information contained within the PSI that E.L. 

was the victim of sex trafficking, as described by the State, 

with Stubblefield as her “pimp” and Gibson as one of her customers. The dissent attempts to diminish Gibson’s culpability 

by describing the incident as “a case of a sexually active high 

school couple who made an irresponsible decision,” but that 

description perpetuates the antiquated misperception that persons who are held out for sexual pleasure by third parties are 

not victims. And it disregards the conviction and sentence of 

Stubblefield for attempted human trafficking that was recently 

summarily affirmed by this court on September 11, 2018, in 

case No. A-18-159.

As admitted to by Gibson, Gibson responded to a Craigslist 

posting made by Stubblefield, Gibson made all arrangements 
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through Stubblefield, Stubblefield was the one who directed 

E.L. to remove her clothing, and it was Stubblefield whom 

Gibson paid. The reality of the situation is that Gibson, age 40 

at the time, engaged in first degree sexual assault of a child 

facilitated online, through a third party, and then sought leniency for having been mistaken as to her age. While we recognize the attributes of Gibson and his lack of a prior criminal 

history, the seriousness of the offense leads us to conclude that 

a term of probation depreciates the seriousness of the offense 

and promotes disrespect of the law.

As set forth above, the factors we consider in determining whether a sentence is excessively lenient include: (1) the 

nature and circumstances of the offense; (2) the history and 

characteristics of the defendant; (3) the need for the sentence 

imposed to afford deterrence; (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 that the appellate court deems pertinent. See 

§ 29-2322.

Taking the above factors into consideration—particularly 

the nature and circumstances of the offense; the need to afford 

deterrence for this type of crime; and the need for the sentence 

to reflect the seriousness of the offense, to promote respect for 

the law, and to provide just punishment—we conclude that a 

term of probation was excessively lenient.

Consideration of Improper, 

Impermissible, and 

Irrelevant Factors.

The sentencing court’s decision was based in part upon 

Stubblefield’s involvement and culpability in the crime. The 
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State claims this was improper, and we agree. Before sentencing Gibson, the court stated:

I can hope that the system does what it is designed to do, 

and in my reading of the [PSI], it indicates to me that . . . 

Stubblefield has, in large part, the majority of the responsibility, from the materials I’ve received. And my hope is 

that [E.L.] is given some sort of justice in that sentence, 

most significantly.

Nowhere in our statutes, nor in our case law, is a sentencing judge instructed to consider whether the victim will 

be “given some sort of justice” in the sentence of another 

wrongdoer when crafting a sentence for the particular defendant before the court. We recognize that where two or more 

defendants are convicted for the same offense and different 

penalties are inflicted, it is appropriate for an appellate court 

to examine the evidence to determine whether there are justifiable reasons for differences in sentences rendered. See State 

v. Morrow, 220 Neb. 247, 369 N.W.2d 89 (1985). However, 

Gibson is the sole defendant in this matter, and at the time 

of sentencing, there was no evidence presented regarding the 

nature of the charge against Stubblefield, whether he had been 

convicted or sentenced, or the nature of the sentence if one 

had been imposed.

[8] The court’s focus should have been on Gibson and his 

conviction for attempted first degree sexual assault of a child, 

taking into consideration all the circumstances of this case. To 

issue a lesser sentence because another person may be more 

culpable detracts from the requirement that the sentencing court 

consider the nature and circumstances of the present crime and 

the characteristics of the offender before it. Consideration of 

whether E.L. will be “given some sort of justice” through the 

sentencing of Stubblefield was not an appropriate factor to 

consider and appears to have resulted in a more lenient sentence for Gibson. We find that the sentencing court abused its 

discretion when it considered this factor.
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CONCLUSION

We conclude that the district court abused its discretion by 

imposing an excessively lenient sentence and considering an 

irrelevant factor when imposing sentence upon Gibson. We 

vacate the sentence and remand the cause to the district court 

with directions to impose a greater sentence. The sentence 

should be imposed by a different district court judge than the 

original sentencing judge.

 Sentence vacated, and cause

remanded with directions.

Bishop, Judge, dissenting.

In my review of the record, this case seems less a “sex trafficking” case (as characterized by the State and the majority 

opinion), and more a case of a sexually active high school 

couple who made an irresponsible decision to experiment 

with their sexuality by engaging in two “threesome” sexual 

encounters which Stubblefield arranged through Craigslist. 

One of those two encounters included Gibson. Stubblefield, 

age 18 at the time, attended the same high school as E.L., and 

the two had been sexually active with each other for about 

6 months when Stubblefield proposed the threesome sexual 

encounters, to which E.L. agreed. Because E.L. was about 

5 months shy of turning 16, she could not legally consent 

to those encounters. According to E.L., Stubblefield wanted 

to “explore his sexuality.” Contrary to the majority’s assertion, my description above does not attempt to diminish 

Gibson’s culpability, nor is it based on an antiquated misperception. Rather, it simply sets forth information contained 

in the record before us. But no matter how we might frame 

the facts, my dissent is driven by our standard of review. 

When reviewing a trial court’s imposition of a sentence, 

this court’s review must be constrained to determining only 

whether the trial court abused its discretion. A judicial abuse 

of discretion exists only when the reasons or rulings of a 

trial judge are clearly untenable, unfairly depriving a litigant 
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of a substantial right and denying a just result in the matters 

submitted for disposition. State v. Parminter, 283 Neb. 754, 

811 N.W.2d 694 (2012). The record in this case supports the 

district court’s decision to impose probation; accordingly, its 

decision is not “clearly untenable,” meaning it is not clearly 

indefensible, unsound, or flawed. See id. at 257, 811 N.W.2d 

at 697.

Most notably, at the sentencing hearing, the district court 

referred to the “number of issues” Gibson’s attorney addressed 

at the hearing which qualified as “mitigating circumstances” 

for Gibson. These remarks included the attorney’s statement 

that he had “helped [Gibson] in his divorce” years ago, so he 

had known Gibson for a number of years. Gibson’s attorney 

then pointed out the following: Gibson had given “16 honorable years of service” in the U.S. Air Force; the courtroom was 

“full of people” supporting Gibson; there were “in excess of 30 

letters [written] attesting to [Gibson’s] good character and reputation”; Gibson was honest and cooperative when contacted by 

the police—he accepted responsibility “from day one”; Gibson 

was “extremely embarrassed, ashamed, and remorseful for his 

actions”; the PSI shows “an individual who has exemplified 

what is the best of people” but also that “we are all prone to 

make mistakes, some more serious than others”; there were 

“pages of [Gibson’s] awards, his decorations, his performance 

reports, all showing what a valued, trusted airman he was” in 

the Air Force; the clinical psychologist’s letter noted Gibson 

was “not classif[ied] as a pedophile under DSM-5”; Gibson 

had no criminal history; Gibson had “very low risk assessment 

totals” under the categories of education, employment, family, 

companions, alcohol, drugs, criminal attitude, and antisocial; 

the administrative discharge proceedings that will take place 

will result in the forfeiture of Gibson’s career in the Air Force 

after 16 years; all of Gibson’s sex offender risk assessment 

totals were very low; Gibson would have to register as a sex 

offender; and Gibson posed little, if any, risk to society in 

the future.
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Gibson’s attorney acknowledged that Gibson had “a great 

lapse in judgment” when he went to Craigslist and responded 

to “an ad with some people who purportedly were representing 

themselves to be of a certain age.” Gibson’s attorney pointed 

out that subjecting Gibson to the terms and conditions required 

under probation would not show disrespect for the law or 

diminish the severity of the crime and that Gibson and society 

would be better served by placing him on probation and giving him an opportunity to better himself and be a productive 

member of society. Gibson personally informed the court that 

he was “extremely remorseful,” not just for what he was going 

to lose, or for letting down his coworkers, but also for E.L. and 

her family.

The PSI states that Gibson “has a spotless criminal record 

other than his current legal situation” and that “[i]t appears 

that his behavior in this offense would be out of character for 

. . . Gibson.”

The district court found that Gibson had accepted responsibility for and appreciated the seriousness of his actions. In 

addition to the 180 days in jail, the 5 years of probation will 

require Gibson to comply with numerous conditions. These 

include the following: obey all laws and report any violation 

by the next business day; avoid social contact with persons 

having criminal records or who are currently on probation 

or parole; report to probation when directed and permit the 

probation officer to visit at all times and places; reside within 

the state unless otherwise authorized by the probation officer; 

obtain permission before changing address or employment; 

cooperate in all matters which might affect probation and 

truthfully answer all inquiries from the probation officer; 

maintain suitable employment; abstain from the use of alcohol or controlled substances (unless prescribed by a physician); cannot be present in any location where the primary 

business is to serve alcohol or attend any social function 

at which alcoholic beverages are served without permission 
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from the probation officer; submit to random chemical testing of blood, breath, or urine; submit to random searches 

and seizures of the person, premises, or vehicle without a 

warrant and whether or not probable cause exists upon the 

request of a probation officer or law enforcement officer 

when authorized by the probation officer; pay all fines, court 

costs, and fees; complete a psychosexual evaluation and follow all recommendations; continue therapy and medication 

management; attend any support group if deemed necessary 

by the probation officer; have no contact with the victim 

during the life of the probation; participate in “moral reconation” therapy; have no unfiltered access to the internet or to 

any social media sites; have no contact with children under 

the age of 18; have no relationships with any individuals 

who have children under the age of 18; and submit to regular search and seizure of the person, property, or vehicle, to 

include electronic devices.

Despite these numerous requirements and restrictions on 

Gibson’s life for the duration of his probation, the majority 

nevertheless concludes the district court abused its discretion 

by failing to impose incarceration instead of probation. The 

majority acknowledges that “[t]he record supports the sentencing court’s decision to impose probation in lieu of incarceration 

based upon Gibson’s unlikelihood to reoffend and the availability of treatment . . . .” However, the majority then focuses 

on “the nature of the crime and whether probation would 

depreciate its seriousness or promote disrespect of the law.” It 

is difficult to imagine that the district court saw the crime as 

any less serious than this court, and it is not clear why a 5-year 

probation sentence on this record promotes disrespect for the 

law. To the contrary, the record before us fully supports the 

district court’s decision to order probation when considering 

all sentencing factors, as well as those specific factors favoring withholding a sentence of imprisonment as set forth in 

§ 29-2260(3).
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The majority also states that the district court’s decision 

was improperly “based in part upon Stubblefield’s involvement and culpability in the crime” and that this “was not an 

appropriate factor to consider and appears to have resulted in 

a more lenient sentence for Gibson.” I do not read the district court’s comment that it hoped E.L. “is given some sort 

of justice in [Stubblefield’s] sentence, most significantly” to 

suggest that this was a factor the court relied upon when sentencing Gibson to probation. That comment could certainly 

mean that the district court expected Stubblefield to be more 

significantly sentenced than Gibson and that this would result 

in a greater impact in terms of justice for E.L. However, that 

does not necessarily mean the court allowed consideration 

of Stubblefield’s potential sentence to influence its decision 

when sentencing Gibson. And given the abundance of favorable information presented to the district court to support a 

sentence of probation, the district court’s comment hardly rises 

to an abuse of discretion.

As noted in Gibson’s brief, “While there is a temptation 

on a visceral level to conclude that anything less than incarceration depreciates the seriousness of crimes of this sort, it 

is the function of the sentencing judge, in the first instance 

to evaluate the crime and the offender.” Brief for appellee at 

13. 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. State v. 

Brown, 300 Neb. 57, 912 N.W.2d 241 (2018). And as this 

court recently stated when denying relief in an excessively 

lenient sentence appeal involving a 4-year combined sentence 

for a defendant convicted of two drug offenses and three firearm offenses:

Although [the defendant’s] history [three prior felony convictions] and the nature and circumstances of 

the present offenses certainly could have supported a 

longer term of incarceration [the defendant faced up to 
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26 Nebraska Appellate Reports

STATE v. GIBSON

Cite as 26 Neb. App. 559

250 years’ imprisonment], when reviewing sentences for 

excessive leniency, we do not review the sentence de 

novo and the standard is not what sentence we would 

have imposed.

State v. Felix, 26 Neb. App. 53, 60, 916 N.W.2d 604, 609 

(2018) (noting abuse of discretion standard of review applies 

whether reviewing sentence for leniency or excessiveness). 

Accordingly, adhering to the abuse of discretion standard of 

review applicable to this court’s review of Gibson’s sentence, 

and finding no abuse of discretion by the district court, I 

would affirm Gibson’s conviction and sentence.