State v. Albers

when an at-will employee continues working with knowledge
of changed sick leave policies, the employee gives up any
rights under a superseded policy.15
We conclude that the record before us does not provide a
basis for determining that World’s pre-1996 sick leave policy
created any vested contractual right entitling Loves to payment
of unused sick leave at the time of her retirement in 2003.
Accordingly, we need not address the statute of limitations
issue presented in this appeal.
CONCLUSION
For the reasons discussed, we conclude that the district court
did not err in granting World’s motion for summary judgment
and denying Loves’ cross-motion. We therefore affirm the judg-
ment of the district court in favor of World.
affiRmed.
wRiGht, J., not participating.
15 National Rifle Ass’n v. Ailes, 428 A.2d 816 (D.C. 1981); Werden v. Nueces
County Hosp. Dist., 28 S.W.3d 649 (tex. App. 2000); Gamble v. Gregg
County, 932 S.W.2d 253 (tex. App. 1996); Willets v. City of Creston, 433
N.W.2d 58 (Iowa App. 1988).
state of nebRaska , appellee , v.
Joshua l. albeRs , appellant.
758 N.W.2d 411
Filed December 19, 2008. 	No. S-07-1322.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
2. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
3. Prosecuting Attorneys: Presentence Reports. Under the first sentence of Neb.
rev. Stat. § 29-2261(6) (Cum. Supp. 2006), a prosecutor is included in the cat-
egory of “others entitled by law to receive” the information in the presentence
report and therefore the sentencing court is not required to make a determination
942 	276 NEBrASkA rEpOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

of the defendant’s best interest before allowing the prosecutor to review the pre-
sentence report.
4. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
5. 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.
6. ____. In imposing a sentence, the sentencing court is not limited to any mathe-
matically applied set of factors. 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 surround-
ing the defendant’s life.
Appeal from the District Court for Dodge County, John e.
samson, Judge, on appeal thereto from the County Court for
Dodge County, kenneth vampola, Judge. Judgment of District
Court affirmed.
Steven J. twohig, of twohig Law Office, p.C., L.L.O., for
appellant.
Jon Bruning, Attorney general, and James D. Smith for
appellee.
heavican, 	c.J., 	wRiGht, 	connolly, 	G eRRaRd, 	stephan,
mccoRmack , and milleR-leRman, JJ.
milleR-leRman, J.
NAtUrE OF CASE
Joshua L. Albers pled no contest in the county court for
Dodge County to misdemeanor charges of attempted terroristic
threats, false reporting, and third degree assault. prior to sen-
tencing, Albers sought unsuccessfully to preclude the prosecu-
tor from reviewing the presentence investigation report (pSI).
Albers was sentenced to imprisonment for 365 days on each
of the counts, with the sentences to be served concurrently.
Albers appealed to the district court for Dodge County, which
affirmed the county court’s rulings. Albers appeals to this court
and asserts that his sentences are excessive. He also asserts
StAtE v. ALBErS 	943
Cite as 276 Neb. 942

that the county court erred in overruling his motion to preclude
review of the pSI by the prosecuting attorney and that the
district court erred in affirming such ruling. Finding no error,
we affirm.
StAtEmENt OF FACtS
the charges against Albers arose from an incident that
occurred on February 11, 2007, in Fremont, Nebraska. Dale
White, his wife, and their 7-year-old daughter were in a pickup
stopped at a sign inside a mall parking lot. Albers turned into
the parking lot driving his car at a high rate of speed and
nearly hit White’s pickup. White responded by “flipping off”
Albers. White drove his pickup out of the parking lot and
onto an adjoining road. Albers turned his car around to follow
White. White stopped on the side of the road and got out of
the pickup. White saw Albers’ car approaching and threw a
frozen plastic pop bottle at Albers’ car, breaking the passenger
side mirror. Albers stopped his car and approached White’s
pickup with a gun. Albers pointed the gun at White’s wife and
daughter, who were still inside the pickup. Albers pointed the
gun in White’s direction and fired but told White that the gun
was not real. the record indicates that the gun was a “starter
pistol” that fired blanks. Albers returned to his car and left
after hearing sirens from a police car that was responding to a
call placed to the 911 emergency dispatch service by White’s
wife. After leaving, Albers hid the gun and called the police
to make his own report. police found Albers in the mall park-
ing lot.
the State charged Albers with attempted terroristic threats,
false reporting, and third degree assault in connection with the
incident. Albers pled no contest, and the county court found
Albers guilty on all three counts.
prior to the sentencing hearing, Albers moved for closed
proceedings on the basis that private mental health informa-
tion would be disclosed at the hearing and public dissemina-
tion of such information would be unduly prejudicial to him.
Albers also moved for an order to preclude “the prosecuting
authority from reviewing, receiving or obtaining any privileged
944 	276 NEBrASkA rEpOrtS

information contained within the [pSI]” prepared in Albers’
case. the county court sustained Albers’ motion for closed
proceedings, but overruled his motion to preclude the county
attorney from reviewing the pSI. the court stated, however,
that any information in the pSI that should not be discussed
in open court could be identified and would be protected. the
court thereafter sentenced Albers to jail for 365 days on each
of the three convictions and ordered the sentences to be served
concurrent with one another.
Albers appealed to the district court. In his statement of
errors, Albers asserted that the county court imposed excessive
sentences and erred in overruling his motion to preclude review
of the pSI by the prosecuting authority. the district court
affirmed Albers’ sentences after concluding that the county
court did not abuse its discretion by imposing the sentences.
the district court further concluded that the pSI had been prop-
erly submitted to the county court and that therefore any com-
ment the county attorney made at the sentencing with regard
to the pSI merely repeated information already available to
the court.
Albers appeals the district court’s affirmance of the rulings
by the county court.
ASSIgNmENtS OF ErrOr
Albers asserts that the district court erred in (1) affirming
the county court’s overruling of his motion to preclude review
of the pSI by the prosecutor and (2) finding that the sentences
imposed by the county court were not excessive.
StANDArDS OF rEVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made
by the court below. State v. Hense, ante p. 313, 753 N.W.2d
832 (2008).
[2] Sentences within statutory limits will be disturbed by an
appellate court only if the sentences complained of were an
abuse of judicial discretion. State v. Draganescu, ante p. 448,
755 N.W.2d 57 (2008).
StAtE v. ALBErS 	945
Cite as 276 Neb. 942

ANALySIS
Prosecutors Are “Others Entitled by Law” to Receive
Information in Presentence Investigation Report.
the 	statute 	at 	issue 	in 	this 	case 	is 	Neb. 	rev. 	Stat.
§ 29-2261(6) (Cum. Supp. 2006), which provides in relevant
part as follows:
Any presentence report . . . shall be privileged and shall
not be disclosed directly or indirectly to anyone other
than a judge, probation officers to whom an offender’s
file is duly transferred, the probation administrator or
his or her designee, or others entitled by law to receive
such information, including personnel and mental health
professionals for the Nebraska State patrol specifically
assigned to sex offender registration and community
notification for the sole purpose of using such report
or examination for assessing risk and for community
notification of registered sex offenders. . . . the court
may permit inspection of the report or examination of
parts thereof by the offender or his or her attorney, or
other person having a proper interest therein, whenever
the court finds it is in the best interest of a particu-
lar offender.
Albers asserts that under § 29-2261(6), a court must find
that it is in the best interest of a defendant before the court
allows a prosecutor to review the pSI. Albers claims that the
county court erred when it failed to make such a determination
in this case and that the district court erred when it affirmed
the county court’s ruling. We conclude that there is no merit to
Albers’ argument.
[3] In the lower courts and on appeal, Albers’ argument
focuses on the last portion of § 29-2261(6), which provides
that a “court may permit inspection of the [pSI] by the offender
or his or her attorney, or other person having a proper interest
therein, whenever the court finds it is in the best interest of a
particular offender.” relying on this language, Albers claims
that before permitting the prosecutor to inspect the pSI, the
county court was required but failed to consider whether such
inspection was in Albers’ best interest. Contrary to Albers’
reading of the statute, we conclude that under the first sentence
946 	276 NEBrASkA rEpOrtS

of § 29-2261(6), a prosecutor is included in the category of
“others entitled by law to receive” the information in the pSI
and that therefore the sentencing court is not required to make
a determination of the defendant’s best interest before allowing
the prosecutor to review the pSI.
the first sentence of § 29-2261(6) sets forth the general
proposition that information in a pSI is privileged and is not to
be disclosed to anyone other than those persons listed. As we
read the statute, it provides that those persons listed are excep-
tions to the general rule of nondisclosure and are entitled to
disclosure without a determination of whether such disclosure
is in the best interest of the defendant. the portion of the stat-
ute on which Albers focuses gives the court discretion to allow
inspection of the pSI by additional individuals having a proper
interest only after the court has found that such disclosure is
in the best interest of the defendant. this latter portion of the
statute applies only to those individuals who are not already
entitled to disclosure under the first sentence of § 29-2261(6).
the individuals “entitled by law” to review the pSI are not
subject to a best interest analysis.
In view of the foregoing, the issue before us is whether a
prosecutor is a person “entitled by law” to disclosure under
the first sentence of § 29-2261(6). the first sentence of the
statute specifically lists, inter alia, judges, probation officers,
and mental health professionals for the Nebraska State patrol
as persons entitled to disclosure. prosecutors are not specifi-
cally listed.
In analyzing § 29-2261(6), we note first that in State v.
Owen, 1 Neb. App. 1060, 1086, 510 N.W.2d 503, 520 (1993),
the Nebraska Court of Appeals stated that “[n]either the legis-
lative history nor the case law citing § 29-2261 sheds any light
on who might comprise the group of ‘others entitled by law
to receive such information.’” In Owen, the Court of Appeals
determined that jurors in a criminal trial were not “others
entitled by law to receive such information.” We agree that
neither the legislative history of § 29-2261 nor the case law
prior to Owen sheds light on who might comprise the group of
“others entitled by law to receive such information.” We further
observe that case law since Owen is not helpful.
StAtE v. ALBErS 	947
Cite as 276 Neb. 942

[4] A court must attempt to give effect to all parts of a stat-
ute, and if it can be avoided, no word, clause, or sentence will
be rejected as superfluous or meaningless. State v. Bossow, 274
Neb. 836, 744 N.W.2d 43 (2008). Because we cannot reject
the phrase “others entitled by law to receive such information”
as superfluous or meaningless, we determine that a group of
such “others” was intended by the Legislature to exist. For
the reasons discussed below, we conclude that prosecutors are
included in the group comprising “others entitled by law” to
disclosure of the information in the pSI.
It has been observed that the pSI serves several functions,
including providing information to the court to assist in the
imposition of a appropriate individualized sentence based on
knowledge of the convicted person’s background and character
which may not otherwise be available to the sentencing court,
especially in a plea-based conviction. See, generally, State v.
Grandberry, 619 N.W.2d 399 (Iowa 2000); Buchea v. Sullivan,
262 Or. 222, 497 p.2d 1169 (1972); State v. LeClaire, 175 Vt.
52, 819 A.2d 719 (2003); Stephen A. Fennell and William
N. Hall, Due Process at Sentencing: An Empirical and Legal
Analysis of the Disclosure of Presentence Reports in Federal
Courts, 93 Harv. L. rev. 1615 (1980). the sentencing hearing
has been identified as a critical stage of the criminal proceed-
ings. Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d
336 (1967). At sentencing, the defendant is entitled to counsel,
id., and the prosecutor is expected to participate in a meaning-
ful manner. See Burns v. United States, 501 U.S. 129, 111 S.
Ct. 2182, 115 L. Ed. 2d 123 (1991).
While we have not been directed to definitive authority
in Nebraska stating that the pSI should be disclosed to the
prosecution, we note that treating prosecutors as individuals
entitled to access to the pSI is commonplace. In the federal
courts, Fed. r. Crim. p. 32(e)(2) requires that the “probation
officer must give the presentence report to the defendant, the
defendant’s attorney, and an attorney for the government . . . .”
(Emphasis supplied.) We further observe that it is common in
other states for a statute or court rule to specifically provide
that prosecutors are allowed or required to have access to a pSI.
See, Ala. r. Crim. proc. 26.3(c) (2003); Alaska r. Crim. proc.
948 	276 NEBrASkA rEpOrtS

32.1(b)(3) (2007); Ariz. r. Crim. proc. 26.6(a) (2008); Colo.
rev. Stat. Ann. § 16-11-102(1)(a) (West 2006); Conn. r. Crim.
proc. § 43-7 (2008); Del. Super. Ct. r. Crim. proc. 32(c)(3)
(2008); D.C. Super. Ct. r. Crim. proc. 32(b)(3) (2008); Fla. r.
Crim. proc. 3.713 (West 2007); Haw. rev. Stat. § 706-604(2)
(Cum. Supp. 2007); Idaho Crim. r. 32(g)(1) (2008); 730 Ill.
Comp. Stat. Ann. 5/5-3-4(b)(2) (LexisNexis 2007); Ind. Code
Ann. § 35-38-1-12(a) (LexisNexis 1998); Iowa Code Ann.
§ 901.4 (West 2008); kan. Stat. Ann. § 21-4605(a)(1) (2007);
La. Code Crim. proc. Ann. art. 877(A) (2008); md. Code
Ann., Corr. Servs. § 6-112(a)(3)(iii) (2008); mass. r. Crim.
p. 28(d)(3) (West 2006); mich. Comp. Laws Ann. § 771.14(5)
(West 2006); 49 minn. r. Crim. proc. 27.03, subd. 1 (West
2006); mont. Code Ann. § 46-18-113(1) (2007); Nev. rev.
Stat. § 176.156(1) (2007); N.m. rules Ann. 5-703 (2008);
N.C. gen. Stat. § 15A-1333(b) (2007); Ohio rev. Code Ann.
§ 2951.03(D)(1) (LexisNexis 2006); Okla. Stat. Ann. tit. 22,
§ 982(D) (West 2003); Or. rev. Stat. § 137.079(1) (2007); pa.
r. Crim. p. 703(A)(2) (West 2008); r.I. Super. Ct. r. Crim.
p. 32(c)(3); S.D. Codified Laws § 23A-27-7 (2004); tenn.
Code Ann. § 40-35-208 (2006); tex. Code Crim. proc. Ann.
art. 42.12, sec. 9(f) (Vernon 2008); Vt. r. Crim. p. 32(c)(3)
(2003); Wash. Super. Ct. Crim. r. 7.1(a)(3) (West 2008);
W.V. r. Crim. p. 32(b)(6); and Wis. Stat. Ann. § 972.15(4m)
(West 2008).
In a case that involved Fed. r. Crim. p. 32, the U.S. Supreme
Court stated that the rule “contemplates full adversary testing
of the issues relevant to a . . . sentence and mandates that the
parties be given ‘an opportunity to comment upon the proba-
tion officer’s determination and on other matters relating to
the appropriate sentence.’” Burns v. United States, 501 U.S.
at 135. thus, the apparent purpose of allowing or requiring
access to the pSI by the prosecutor is to improve the sen-
tencing process by allowing the prosecutor to be informed of
all relevant considerations when advocating for a particular
sentence and, if appropriate, to challenge information within
the report.
We believe that Nebraska law also contemplates an adver-
sary testing of issues relevant to sentencing and our appellate
StAtE v. ALBErS 	949
Cite as 276 Neb. 942

rules of practice so indicate. Where the pSI is material to
issues on appeal, this court’s rules allow the prosecutor access
to the pSI. Neb. Ct. r. App. p. § 2-116(B) provides:
In all cases where a presentence report may be material
on appeal, the defendant, his or her counsel, or counsel
for the State may request the sentencing judge to for-
ward it to the Supreme Court Clerk. In each instance, the
sentencing judge shall cause a copy of the report to be
forwarded to the Clerk in a separate sealed envelope. the
defendant, his or her counsel, or counsel for the State may
examine the report, but it may not be removed from the
office of the Clerk.
rule 2-116(B) allows the “State,” as prosecutor, access to
the pSI to facilitate the prosecutor’s preparation of its appellate
arguments regarding material issues relevant to the pSI and
sentencing. It logically follows that information in a pSI would
be material to issues relating to sentencing at the trial level,
and it is reasonable that the prosecutor should have access to
such information at the time of sentencing.
Sentencing is a critical stage of a criminal proceeding,
Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336
(1967), and the information in a pSI is relevant to sentencing.
In order to facilitate full adversary testing of issues relevant to
sentencing, it is necessary for the prosecutor to have access to
information in the pSI in order to evaluate factors relevant to
sentencing and make informed arguments to the court regard-
ing the proper sentence. For these reasons, we conclude that
prosecutors are among the “others entitled by law to receive”
the information in a pSI under § 29-2261(6).
We conclude as a matter of law that because prosecutors
are “entitled by law to receive” the information in the pSI,
it is not necessary under § 29-2261(6) for a court to deter-
mine whether it is in the best interest of the defendant before
allowing the prosecutor access to the pSI. We therefore con-
clude that the county court did not err in overruling Albers’
motion to preclude review of the pSI by the prosecuting
authority and that the district court did not err in affirming
such decision.
950 	276 NEBrASkA rEpOrtS

The Sentences Imposed Are Not Excessive.
Albers asserts that the county court imposed excessive
sentences and that the district court erred in affirming such
sentences. the sentences were within statutory limits, and we
conclude that the sentences imposed were not an abuse of dis-
cretion and therefore not excessive. See State v. Draganescu,
ante p. 448, 755 N.W.2d 57 (2008).
Albers was convicted of attempted terroristic threats under
Neb. rev. Stat. § 28-311.01 (reissue 1995) (terroristic threats)
and Neb. rev. Stat. § 28-201 (Cum. Supp. 2006) (criminal
attempt), false reporting under Neb. rev. Stat. § 28-907 (Cum.
Supp. 2006), and third degree assault under Neb. rev. Stat.
§ 28-310 (reissue 1995). terroristic threats is a Class IV
felony under § 28-311.01(2), and therefore attempted terroristic
threats is a Class I misdemeanor under § 28-201(4)(e). False
reporting and third degree assault are also Class I misdemean-
ors under § 28-907(2)(a) and § 28-310(2), respectively. the
maximum sentence of imprisonment for a Class I misdemeanor
is 1 year. Neb. rev. Stat. § 28-106(1) (Cum. Supp. 2006).
Albers was sentenced to imprisonment for 365 days on each
count with the sentences to be served concurrently. therefore,
Albers’ sentences were within statutory limits.
[5,6] 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) moti-
vation 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. Kinkennon, 275 Neb. 570, 747 N.W.2d 437
(2008). In imposing a sentence, the sentencing court is not lim-
ited to any mathematically applied set of factors. State v. Reid,
274 Neb. 780, 743 N.W.2d 370 (2008). 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. Id.
Albers argues that the county court failed to adequately
consider factors including his age and background and certain
StAtE v. ALBErS 	951
Cite as 276 Neb. 942

aspects of the incident that gave rise to the charges against
him. He notes that he was 18 at the time of the incident and
had gone through an “extraordinary struggle” in his youth,
including numerous juvenile placements and an undiagnosed
head injury. With regard to the circumstances of the offense,
Albers places a significant amount of blame for the inci-
dent on White, asserting that White fueled Albers’ actions
by flipping him off and by throwing a projectile at Albers’
vehicle and breaking the side passenger mirror. Albers also
states that he used a “cap gun” to threaten White rather than
using “an actual firearm capable of inflicting actual damages.”
Finally, Albers compares his sentencing to other cases which
he claims are roughly comparable and in which lesser sen-
tences were imposed.
At the sentencing hearing, the county court made little com-
ment regarding the reasons behind its sentencing; however, in
response to a comment made by counsel for Albers in which
the court was urged to consider Albers’ “juvenile issues” and
“medical issues,” the court responded that such issues were
“the reason why I’m not going to give him three years.”
We read this comment to indicate that the factors urged by
Albers were in fact considered by the court and prompted the
court to order the sentences to be served concurrently rather
than consecutively.
the pSI includes other information relevant to the court’s
sentencing decision. the pSI indicates that Albers’ history
included juvenile dispositions over 6 years which will not be
repeated here. Albers’ adult criminal history included con-
victions for criminal trespass, disturbing the peace, second
degree criminal trespass, and third degree assault, all of which
occurred within the year prior to the incident giving rise to
the charges in this case. Albers’ adult criminal history also
included several traffic offenses, including a charge of engag-
ing in a speed contest which occurred after the incident in this
case. the probation officer who prepared the pSI opined that
the risk was substantial that Albers would engage in additional
criminal conduct during a period of probation and that Albers
was in need of correctional treatment that could be provided
most effectively by commitment to a correctional facility. the
952 	276 NEBrASkA rEpOrtS

probation officer strongly recommended that Albers be given
a straight sentence and asserted that a lesser sentence would
depreciate the seriousness of the offense. the pSI also included
statements from White, his wife, and his daughter regarding the
effect the incident had on the family, particularly the effect on
the 7-year-old daughter.
With regard to Albers’ argument that the county court
imposed a lesser sentence in another case, we have stated that
in an appeal that does not involve a death sentence, “the issue
in reviewing a sentence is not whether someone else in a dif-
ferent case received a lesser sentence, but whether the defend-
ant in the subject case received an appropriate one.” State v.
Philipps, 242 Neb. 894, 897, 496 N.W.2d 874, 877 (1993). the
other case to which Albers referred does not control our evalu-
ation of the appropriateness of the sentence in this case.
Finally, Albers makes no argument that the county court
factored improper considerations into its sentencing decision.
Based on the factors noted above, we determine that the county
court did not abuse its discretion by imposing concurrent sen-
tences of 365 days’ imprisonment for the three convictions,
and we conclude that the district court did not err in affirming
such sentences.
CONCLUSION
We conclude that prosecutors are among the “others entitled
to receive” information from the pSI under § 29-2261(6) and
that therefore the county court did not err in overruling Albers’
motion to preclude review of the pSI by the prosecuting author-
ity. We further conclude that the county court did not abuse its
discretion and that the sentences imposed are therefore not
excessive. We therefore conclude that the district court did not
err in affirming the foregoing rulings, and we affirm the deci-
sion of the district court.
affiRmed.
StAtE v. ALBErS 	953
Cite as 276 Neb. 942