State v. Cerny

travel arrangements, the district court should set out a specific
visitation schedule for the noncustodial parent, taking into con-
sideration Miller’s school calendar. And of course, since one
parent will get sole custody, the district court should also make
child support determinations.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
stAte of nebrAskA, Appellee , v.
nicholAs A. cerny, AppellAnt.
770 N.W.2d 676
Filed July 28, 2009. 	No. A-08-1316.
1. Restitution. A restitution order is improper where there was no restitution hear-
ing, there was no evidence adduced to demonstrate the propriety of the amount
included in the order, and there was no mention of restitution in the oral pro-
nouncement of sentence.
Appeal from the District Court for York County: A lAn G.
G less, Judge. Affirmed as modified.
Eric 	J. 	Williams, 	York 	County 	Public 	Defender, 	for
appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
irwin, cArlson, and moore, Judges.
irwin, Judge.
I. INTRODUCTION
Nicholas A. Cerny appeals the sentence imposed by the
district court for York County, Nebraska, upon his no contest
plea to attempted first degree sexual assault. On appeal, Cerny
alleges that the period of incarceration imposed, 5 to 10 years,
was excessive and that there was no basis for imposing a resti-
tution order of $666.78. We find no merit to the first assertion,
but strike the restitution order in accordance with the State’s
agreement that such order was improperly included in the writ-
ten sentencing order.
818 	17 NEBRASkA APPELLATE REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

II. BACkGROUND
This case arises out of an incident in which Cerny, then 20
years of age, engaged in oral and vaginal sexual penetration
with the victim, then 15 years of age. Cerny pled no contest
to an amended charge of attempted first degree sexual assault.
The district court sentenced Cerny to 5 to 10 years’ imprison-
ment. In addition, although the oral pronouncement of sentence
made no mention of restitution, the court included in its written
judgment an order of restitution in the amount of $666.78 “for
distribution to the victim’s mother.” This appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Cerny has assigned two errors. First, Cerny
asserts that the term of incarceration imposed was excessive.
Second, Cerny asserts that the restitution order was improper.
IV. ANALYSIS
1. excessive sentence
We find no merit to Cerny’s assertion that the sentence
imposed was excessive. Cerny pled no contest to a Class III
felony offense, punishable by a minimum of 1 year’s imprison-
ment and a maximum of 20 years’ imprisonment, a $25,000
fine, or both. See Neb. Rev. Stat. §§ 28-319, 28-201(4)(b), and
28-105 (Reissue 2008). The underlying offense involved sexual
penetration between Cerny, who was then 20 years of age, and
a victim, who was then 15 years of age.
Although Cerny had a minimal criminal record prior to this
offense and although the presentence investigation report indi-
cated that Cerny was at a low risk to reoffend, in light of the
nature of the offense we do not find any abuse of discretion by
the court in imposing a sentence that was well within the statu-
tory limits. This assignment of error is without merit.
2. restitution order
[1] We modify the written order of sentence to strike the
order of restitution in the amount of $666.78. There was no
restitution hearing, there was no evidence adduced to demon-
strate the propriety of the amount included in the order, and
there was no mention of restitution in the oral pronouncement
STATE v. CERNY 	819
Cite as 17 Neb. App. 818

of sentence. The State agrees on appeal that the restitution por-
tion of the order was improper and has joined Cerny in request-
ing that it be stricken from the written sentencing order.
V. CONCLUSION
We find no merit to Cerny’s assertion that the term of
incarceration imposed was excessive. We modify the written
sentencing order to strike the order of restitution in the amount
of $666.78.
A ffirmed As modified.
820 	17 NEBRASkA APPELLATE REPORTS