State v. Hatt

submitted, if the integrity of the adversarial trial process is to be
maintained, we think the trial judge is under a duty to decide the
matter on the merits.” Id.
[2] Section 25-601 is unambiguous in its terms. After sub-
mission, a trial court has no authority to dismiss a case without
prejudice on the basis that a plaintiff has failed to produce suf-
ficient evidence to sustain his or her claims. The district court
erred in doing so in the instant case.
CONCLUSION
We modify the judgment of the district court to dismiss
kelli’s petition with prejudice, and as so modified, we affirm.
affirmed aS modified .
S tate of nebraSka , appeLLant , v .
gregory d. hatt , appeLLee .
744 N.W.2d 493
Filed February 5, 2008. 	No. A-07-190.
1. Sentences: Appeal and Error. Whether an appellate court is reviewing a sentence
for its leniency or its excessiveness, a sentence imposed by a district court that is
within the statutorily prescribed limits will not be disturbed on appeal unless there
appears to be an abuse of the trial court’s 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. Sentences: Appeal and Error. Neb. rev. Stat. § 29-2322 (reissue 1995) provides
that an appellate court, upon a review of the record, shall determine whether a
sentence imposed is excessively lenient, having regard for (1) the nature and
circumstances of the offense; (2) the history and characteristics of the defendant;
(3) the need for the sentence imposed (a) to afford adequate deterrence to crimi-
nal conduct; (b) to protect the public from further crimes of the defendant; (c) to
reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; and (d) to provide the defendant with needed edu-
cational or vocational training, medical care, or other correctional treatment in the
most effective manner; and (4) any other matters appearing in the record which the
appellate court deems pertinent.
4. Sentences. A sentencing court is not limited in its discretion to any mathematically
applied set of factors. The appropriateness of a sentence is necessarily a subjec-
tive judgment and includes the sentencing judge’s observation of the defendant’s
STATe v. HATT 	397
Cite as 16 Neb. App. 397
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

demeanor and attitude and all the facts and circumstances surrounding the defend-
ant’s life. But there also must be some reasonable factual basis for imposing a
particular sentence.
Appeal from the District Court for Douglas County: marLon
a. poLk, Judge. Sentence vacated, and cause remanded for
resentencing.
Donald W. kleine, Douglas County Attorney, and James M.
Masteller for appellant.
Christopher J. Lathrop for appellee.
inbody, Chief Judge, and irwin and moore, Judges.
moore, Judge.
INTrODUCTION
The State of Nebraska, through the Douglas County Attorney,
appeals from the sentence imposed upon Gregory D. Hatt for
his conviction of driving under the influence of alcohol (DUI),
fourth offense. The State asserts that the sentence imposed—a
2-year period of intensive supervision probation (ISP) under
specified terms and conditions—was excessively lenient. For the
reasons recited below, we conclude that the sentence is exces-
sively lenient, vacate the sentence, and remand the cause with
instructions for a different judge to impose a greater sentence.
BACkGrOUND
In an amended information filed on November 13, 2006,
Hatt was charged with DUI, fourth offense, a Class IV felony;
assault on an officer in the second degree, a Class III felony;
operating a motor vehicle during a period of revocation, a
Class II misdemeanor; and leaving the scene of a personal
injury accident, a Class I misdemeanor. A jury trial was held,
after which the jury found Hatt guilty of all charges, except the
assault charge.
We do not have the bill of exceptions from the trial; how-
ever, our record contains a presentence investigation report
(PSI) which contains certain information about the events
leading up to Hatt’s arrest. At this point, we note that the PSI
in our record, dated February 5, 2007, is an update to the PSI
398 	16 NeBrASkA APPeLLATe rePOrTS

completed on November 4, 2005, in connection with Hatt’s
last DUI conviction. The State in its brief cites to information
apparently contained in the previous PSI, which is not in our
record. Our review is limited to the PSI update contained in the
record presented to us in this appeal.
The PSI indicates that the charges in this case stem from an
occurrence in the early morning hours of February 10, 2006.
While on routine patrol in Omaha, a police officer’s vehicle
was struck by a vehicle driven by Hatt, who immediately fled
from the scene on foot. Hatt was apprehended shortly after the
collision and was subjected to field sobriety tests and a breath
test, which resulted in a reading of .200 of a gram of alcohol
per 210 liters of his breath. Hatt admitted that he had been
drinking beer for several hours during the evening preceding
the accident. A check of Hatt’s record at the time of arrest
revealed that his driver’s license was suspended as of November
4, 2005, for a DUI conviction and also revealed four additional
DUI convictions.
The police officer whose vehicle was struck sustained serious
injuries as a result of the accident, resulting in fusion surgery in
his spine which has caused him pain and has limited his activi-
ties and ability to work.
A sentencing hearing was held on February 9, 2007. At
the hearing, Hatt’s attorney stated that Hatt had successfully
completed an outpatient treatment program for his alcohol and
mental health issues and that Hatt’s counselor had indicated
that Hatt could be successfully discharged from the program.
Hatt’s attorney also stated that Hatt was attending Alcoholics
Anonymous (AA) meetings and had a sponsor, and indicated
that the court had a letter from the sponsor, though this letter
does not appear in our record. Hatt’s attorney requested that
Hatt receive probation, while the victim and the State requested
a term of incarceration and a 15-year license revocation.
Before sentencing Hatt, the district court stated the following
to him:
[I]n trying to determine your sentence, the Court has
reviewed the [PSI] that was prepared as well as the letters
received from your counselors. And as you know, we had
a multiple day jury trial in this matter, so the Court is very
STATe v. HATT 	399
Cite as 16 Neb. App. 397

familiar with the factual circumstances as to what took
place on the day in question.
And as I’ve said many times, dealing with drunk drivers
is the most difficult thing for me to do because there is
no certainty as to what the answer should be, and I think
that that uncertainty is reflected in the law because this
appears to be one of the few crimes where you are given
so many different options, which tells you how compli-
cated this area is.
And on the one hand, the probation department is
recommending that you go straight to prison, and in one
sense that would answer the question and provide some
certainty, at least in the short-term, because we could
simply just lock you up and not have to worry about you
violating any more Court orders or you driving drunk.
And as your lawyer pointed out, that has to be balanced
with what is best for you, because under Nebraska law
the Court is not only to consider numerous factors in
determining what the appropriate sentence should be, but
the sentence must also — not only fit the crime, but must
also fit you as well. And that again is one of the reasons
that it makes it so difficult, because a clear argument
could be made that the counseling and all of that was
undertaken clearly just because you were involved in the
court process, because there always seems to be gaps in
the counseling. There never seems to be gaps when there
is a court proceeding coming on or there never seems to
be counseling when there is not a court proceeding on
the horizon.
And with your history of alcohol use it should not take
20 years, it should not take this sentencing day for you to
understand what your issues are, and that responsibility all
falls on you. And that further has to be balanced with the
society that we have created with the prevalence and the
acceptance and the promotion and all the uses for alcohol
that everyone seems to celebrate until something goes
wrong, and that is another balance as well.
And it’s not really my position to do what I think is
popular, but I am, at least in my judgment, trying to do
400 	16 NeBrASkA APPeLLATe rePOrTS

what is best for all of those involved. Because the one
thing we cannot guarantee is no matter how long we put
you in prison, we could not guarantee that you do not drink
again. We cannot guarantee that you do not drive again
even if we take your driver’s license as has been done in
the past, and none of those guarantees are unfortunately
available to us.
The Court does note that there is a victim in this case,
and multiple victims, society as well as [the injured offi-
cer]. And the Court does recognize what he went through
having sat through this trial.
The district court then sentenced Hatt to 2 years’ ISP with
several specified terms and conditions. Hatt was ordered to
be on electronic monitoring for the first 120 days; use a
“SCHrAMM” device, which would monitor him for alcohol
use; and have a curfew for the first year of probation, by which
he was ordered to be in his place of residence by 10 p.m. on
Friday, Saturday, and Sunday nights. Hatt was fined $1,000,
and his driver’s license was revoked for a period of 1 year.
Hatt was also ordered to serve 10 days in the Douglas County
Correctional Center, with credit for 1 day served. Hatt’s vehicle
was immobilized for 6 months. The written order of ISP also
states that Hatt shall “[c]ontinue in any treatment programs that
have been recommended including attend AA meetings.”
For Hatt’s other two convictions, operating a motor vehi-
cle during a period of revocation and leaving the scene of
a personal injury accident, Hatt was sentenced to 2 years’
ISP, to be served concurrently. Hatt was also convicted of a
probation violation under a separate docket, the sentencing for
which occurred at the same time as sentencing for the instant
offenses. Hatt was sentenced on the probation violation to the
Douglas County Correctional Center for 90 days, with credit
for serving 22 days, and his driver’s license was revoked for
15 years.
We note that the district court’s trial docket entry for February
9, 2007, reads in part as follows: “Sentencing hearing. [Hatt]
appeared in Court with counsel . . . . The Court having fully
considered the age of the accused, [his] former course of life,
disposition, habits and inclinations, is of the opinion that the
STATe v. HATT 	401
Cite as 16 Neb. App. 397

accused will refrain from engaging in or committing further
criminal acts in the future.”
The State now timely appeals.
ASSIGNMeNT OF errOr
The State asserts that the district court abused its discretion
by imposing an excessively lenient sentence upon Hatt for the
DUI conviction.
STANDArD OF reVIeW
[1,2] Whether an appellate court is reviewing a sentence
for its leniency or its excessiveness, a sentence imposed by a
district court that is within the statutorily prescribed limits will
not be disturbed on appeal unless there appears to be an abuse
of the trial court’s discretion. State v. Thompson, 15 Neb. App.
764, 735 N.W.2d 818 (2007); State v. Rice, 269 Neb. 717, 695
N.W.2d 418 (2005). A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and deny-
ing a just result in matters submitted for disposition. Id.
ANALYSIS
The State asserts that the district court abused its discretion
and imposed an excessively lenient sentence upon Hatt. Hatt
was convicted of DUI, fourth offense, a Class IV felony punish-
able by up to 5 years’ imprisonment, a $10,000 fine, or both.
See Neb. rev. Stat. §§ 60-6,196 (reissue 2004) and 28-105
(Cum. Supp. 2006).
[3,4] Neb. rev. Stat. § 29-2322 (reissue 1995) provides that
an appellate court, upon a review of the record, shall deter-
mine whether a sentence imposed is excessively lenient, having
regard for (1) the nature and circumstances of the offense; (2)
the history and characteristics of the defendant; (3) the need
for the sentence imposed (a) to afford adequate deterrence to
criminal conduct; (b) to protect the public from further crimes
of the defendant; (c) to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment
for the offense; and (d) to provide the defendant with needed
educational or vocational training, medical care, or other cor-
rectional treatment in the most effective manner; and (4) any
402 	16 NeBrASkA APPeLLATe rePOrTS

other matters appearing in the record which the appellate court
deems pertinent. State v. Thompson, supra. A sentencing court
is not limited in its discretion to any mathematically applied
set of factors. The appropriateness of a sentence is necessar-
ily 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. But
there also must be some reasonable factual basis for imposing a
particular sentence. State v. Rice, supra.
Hatt has a history of alcohol-related offenses, with the pres-
ent offense being his sixth DUI conviction. Hatt was on proba-
tion for a DUI conviction at the time of the current offense.
Hatt’s first DUI arrest occurred on June 13, 1994, for which
he received 15 months’ probation. Hatt was satisfactorily dis-
charged from this probation sentence. Hatt was next arrested for
DUI, first offense, on September 18, 1996, and was sentenced to
1 year of probation, a $500 fine, and a 60-day license impound-
ment. This probation was revoked on February 5, 1998, and
Hatt was sentenced to 60 days in jail. On June 17, 1998, Hatt
was arrested a third time for DUI, which offense was amended
to a second-offense DUI. Hatt was sentenced to 75 days in jail,
a $500 fine, and a 1-year license revocation. Hatt was arrested
a fourth time for DUI on September 7, 1999, and this offense
was amended to a third-offense DUI. Hatt was sentenced to 2
years’ ISP, a $600 fine, and a 1-year license revocation. Hatt was
released from this probation at a later point. On May 5, 2004,
Hatt was arrested for his fifth DUI, which was amended to a
third-offense DUI. Hatt was sentenced to 2 years’ probation, 10
days in jail, a $600 fine, and a 1-year license revocation. It was
this probation sentence that Hatt violated when he committed
the present offense. Hatt’s record also shows two convictions
for driving under suspension. Hatt was sentenced to 12 months’
probation and 2 days in jail for the first conviction, and was
unsatisfactorily discharged from probation. He was sentenced
for the second driving under suspension conviction to 10 days
in jail and a 1-year license revocation.
Hatt was 50 years old at the time of the present offense
and was divorced with two children. Hatt graduated from
high school and attended 1 year of college but did not earn a
STATe v. HATT 	403
Cite as 16 Neb. App. 397

degree. Hatt had been employed as a sales associate and cus-
tomer service representative at Wal-Mart since April 2004. Hatt
described his physical health as “‘good’” and his mental health
as “‘improving every day.’” Hatt reported that he suffers from
depression, for which he takes medication and sees a counselor
one to two times a month.
Hatt 	reported 	during 	the 	PSI 	interview, 	conducted 	on
December 18, 2006, that he had been sober since his May 5,
2004, DUI charge until the current offense in February 2006,
and Hatt stated that he had not consumed alcohol since the
February incident. Hatt stated that on the day prior to the inci-
dent, he had been “doing a lot of errands to get caught up on
his day off from work” and that he “‘was wearing down.’” He
began drinking beer around 4 p.m. at a La Vista keno establish-
ment and then he left and bought gas and a six-pack of beer.
He stated, “‘I drove around. I think and I’m not really sure
what happened or how much I drank. My weight was down.
Unusually low for me.’” Hatt’s “Defendant’s Statement” in the
PSI reads as follows:
Things had been building up inside during the holidays
2005 & stress combined with pressures became over-
whelming which led to a brief meltdown in Feb. 2006
- there were other factors involving medication that have
been corrected since this problem surfaced & with adjust-
ments & therapy, I have improved dramatically. Hope to
continue on this forward direction & feel much better with
things in my life.
Hatt reported that he was attending at least one AA meet-
ing a week and that “‘[m]ost of [his] contacts are with people
from AA.’” Hatt stated that he completed outpatient treatment
in 1998 and 2000 for two DUI convictions. The PSI refers to a
letter from Hatt’s counselor in his probation file which stated
that Hatt began treatment in July 2004 for alcohol dependency
and depression and was ready to be discharged when he relapsed
and received the current DUI offense. The counselor stated in
the letter that the last time he met with Hatt was on August 17,
2006, and that Hatt had canceled several sessions.
Hatt was administered the “Driver risk Inventory,” and the
testing results appear in the PSI. On the “Truthfulness” scale,
404 	16 NeBrASkA APPeLLATe rePOrTS

Hatt scored a “Low risk 14%,” indicating that he was “non-
defensive, cooperative and truthful,” and it was noted that this
was “an accurate SAQ profile.” For the “Alcohol” scale, Hatt
scored a “Maximum risk 96%,” indicating that “[a]lcohol use
may be out of control or represent a ‘recovering alcoholic’
relapse. This person presents a serious problem with alco-
hol and the arrest presents additional corroboration. relapse
risk is very high.” On the “Driver risk” scale, Hatt scored a
“Maximum risk 90%,” with the comment, “Many indicators
of driver risk are indicated. This person presents as an aggres-
sive and irresponsible driver. A driver safety program could
be beneficial.” For the “Stress Coping” scale, Hatt scored a
“Problem risk 73%,” indicating that “[h]igh levels of experi-
enced stress and/or below average stress coping abilities are
indicated. This offender could benefit from completion of a
stress management program.”
A “Simple Screening Instrument” was also administered to
Hatt, and he scored a risk level of 5 out of 14, indicating a
“moderate to high risk for substance abuse and a possible need
for further assessment.” The probation officer who completed
the PSI stated that Hatt’s scoring on the ISP screening tool
indicated that Hatt could be considered for the Work ethic
Camp program, followed by ISP. However, the probation offi-
cer recommended instead a term of incarceration and a 15-year
driver’s license revocation. The probation officer stated that
“Hatt is not an appropriate candidate for Probation anymore. He
has been given plenty of opportunities to change his behavior
and has failed to do so. A term of incarceration and a 15 year
driver’s license revocation is recommended to promote account-
ability for this offense.”
We find that given Hatt’s repeated pattern of alcohol-related
offenses, the sentence imposed by the district court does not
adequately reflect the seriousness of the offense, promote
respect for the law, or provide just punishment. Moreover,
Hatt’s conduct posed an obvious and real threat to public safety.
Hatt has not been deterred from drinking and driving in the past
by either probation or license suspension. There is nothing in
the record to suggest that such measures are likely to succeed
now. Hatt has continued to relapse into alcohol abuse and to
STATe v. HATT 	405
Cite as 16 Neb. App. 397

drink and drive, despite having obtained treatment on a number
of occasions, having been fined and placed on probation, and
having had his license suspended. We conclude that the sentence
imposed by the district court is excessively lenient.
CONCLUSION
We determine that the district court imposed an excessively
lenient sentence upon Hatt. Under Neb. rev. Stat. § 29-2323
(reissue 1995), when an appellate court determines that a sen-
tence imposed is excessively lenient, it shall either (1) remand
the cause for imposition of a greater sentence, (2) remand
the cause for further sentencing proceedings, or (3) impose a
greater sentence. Under § 29-2323(1)(a), we vacate the sen-
tence and remand the cause to the district court with instruc-
tions to impose a greater sentence. The sentence should be
imposed by a different district court judge than the original
sentencing judge.
S entence vacated , and cauSe
remanded for reSentencing .
406 	16 NeBrASkA APPeLLATe rePOrTS