State v. Mlynarik

state of neBRaska , appeLLee , v .
cLinton m. mLynaRik , appeLLant .
743 N.W.2d 778
Filed January 15, 2008. 	No. A-07-449.
1. Probation and Parole: Appeal and Error. The standard used to review the terms
of probation is whether the trial court abused its discretion.
2. Sentences: Appeal and Error. An abuse of discretion in imposing a sentence
occurs when a sentencing court’s reasons or rulings are clearly untenable and
unfairly deprive the litigant of a substantial right.
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.
Appeal from the district Court for sarpy County: david k.
aRteRBuRn, Judge. Affirmed as modified.
Phillip G. Wright, of Wright & Associates, for appellant.
Jon bruning, Attorney General, and James d. smith for
appellee.
sieveRs, caRLson, and casseL, Judges.
caRLson, Judge.
INTrodUCTIoN
Clinton M. Mlynarik, the defendant, pled guilty in a plea
agreement to the charge of attempted possession of a con-
trolled substance, methamphetamine, a Class I misdemeanor.
The district court sentenced the defendant to 3 years of intensive
supervision probation with multiple probation conditions. The
defendant appeals, claiming that some of the conditions of the
probation are an abuse of discretion.
FACTUAl bACkGroUNd
The factual background of this case was provided in the
defendant’s plea. In summary, the defendant admitted to the
use of methamphetamine and, upon a consent search, cer-
tain paraphernalia needed for making methamphetamine was
found. The defendant was originally charged with the fel-
ony charge of possession of a controlled substance, namely
324 	16 NebrAskA APPellATe rePorTs
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methamphetamine, which charge was reduced to the plea charge
of attempted possession.
After a presentence investigation, the defendant was sen-
tenced to 3 years of intensive supervision probation.
AssIGNMeNT oF error
The defendant assigns a single error as follows: “The district
Court erred in and abused its discretion in sentencing the
defendant-Appellant under the terms and conditions of an
order of Probation entered March 30, 2007.”
sTANdArd oF reVIeW
[1] The standard used to review the terms of probation is
whether the trial court abused its discretion. see State v. Wood,
245 Neb. 63, 511 N.W.2d 90 (1994).
[2] An abuse of discretion in imposing a sentence occurs
when a sentencing court’s reasons or rulings are clearly unten-
able and unfairly deprive the litigant of a substantial right. State
v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
ANAlYsIs
The defendant claims three difficulties with the district
court’s probation sentence. In sum, they were that certain con-
ditions of the probation were unrelated to the drug charge, that
some went beyond the “usual terms of probation,” and finally,
that the sentencing court improperly delegated powers to the
probation officer.
After a review of the record and, specifically, the probation
order in toto, we find no abuse of discretion. It should be noted
that the judge at sentencing stated that the defendant had “a
criminal history going back to 1983” and “substance — alcohol
and drug-related offenses that go back to 1986.” These conclu-
sions were totally supported in the record and by the defendant’s
record. The defendant’s relevant criminal history, in brief, shows
three driving under the influence convictions, three controlled
substance convictions, and additional alcohol and drug-related
offenses which were dismissed in other plea agreements. In
regard to its probation sentence, the judge noted, “It’s a proba-
tion that’s designed to help you kick the habit that you’ve got
and get you on the path towards sobriety and a more productive
sTATe v. MlYNArIk 	325
Cite as 16 Neb. App. 324

life and hopefully on a path that won’t bring you back before
me or any other judge again.”
At 	sentencing, 	the 	following 	colloquy 	occurred: 	“THe
CoUrT: 	so 	are 	you 	willing 	to 	do 	these 	things? 	THe
deFeNdANT: Yeah. THe CoUrT: You think you can do these
things? THe deFeNdANT: sure. Yeah, I can do it. It’s a long
time. Yeah, I can do it.”
The defendant admits that his sentence was within the “statu-
tory guidelines.” We find no abuse of discretion on this record.
The appellee notes the potential of plain error in that the dis-
trict court sentenced the defendant to a term of 3 years’ proba-
tion for a “second offense misdemeanor.” The applicable statute
uses the language of a “second offense misdemeanor” but appar-
ently does not define the term. Neb. rev. stat. § 29-2263(1)
(Cum. supp. 2006) states in part, “When a court has sentenced
an offender to probation, the court shall specify the term of
probation which shall be not more than five years upon convic-
tion of a felony or second offense misdemeanor and two years
upon conviction of a first offense misdemeanor.” (emphasis
supplied.) The amended information in this case did not allege
a second offense misdemeanor.
This question of whether a person who has committed a
number of misdemeanors falls into the category of a “sec-
ond offense misdemeanor” under the above statute appears to
be a one of first impression. It is true that the term “second
offense” in Nebraska law generally denotes a specific charge-
able offense, e.g., Neb. rev. stat. § 60-6,197.03 (supp. 2007)
(driving under the influence, second offense); Neb. rev. stat.
§ 60-4,108 (reissue 2004) (driving under suspension, second
offense); Neb. rev. stat. § 28-106 (Cum. supp. 2006); State
v. Ladehoff, 229 Neb. 111, 425 N.W.2d 352 (1988) (probation
term of 2 years is maximum unless offense is felony or second
offense misdemeanor).
[3] based on the fact that the charge does not specify “sec-
ond offense,” we find that the district court’s sentence was plain
error. Plain error may be found on appeal when an error unas-
serted 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,
326 	16 NebrAskA APPellATe rePorTs

and fairness of the judicial process. State v. Barfield, 272 Neb.
502, 723 N.W.2d 303 (2006), disapproved on other grounds,
State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
Finding plain error, we modify the defendant’s sentence of pro-
bation from 3 years to 2 years.
CoNClUsIoN
based on the foregoing, we affirm the district court’s judg-
ment as modified.
affiRmed as modified .
sTATe v. MlYNArIk 	327
Cite as 16 Neb. App. 324