Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/14/2025 09:14 AM CST
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. DAWN
Cite as 320 Neb. 342
State of Nebraska, appellee, v.
Schuyler D. Dawn, Jr., appellant.
___ N.W.3d ___
Filed November 14, 2025. No. S-25-021.
1. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the
discretion of the trial court and will not be disturbed on appeal absent
an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Sentences: Probation and Parole: Appeal and Error. A determination
of whether there are substantial and compelling reasons under Neb. Rev.
Stat. § 29-2204.02(2)(c) (Reissue 2016) that an offender cannot effectively and safely be supervised in the community on probation is within
the trial court’s discretion and will not be reversed on appeal absent an
abuse of discretion.
4. Motions for Continuance: Appeal and Error. A court does not
abuse its discretion in denying a continuance unless it clearly appears
that the party seeking the continuance suffered prejudice because of
that denial.
5. Criminal Law: Motions for Continuance: Appeal and Error. Where
the criminal defendant’s motion for continuance is based upon the
occurrence or nonoccurrence of events within the defendant’s own control, denial of such motion is no abuse of discretion.
6. Sentences: Probation and Parole. The court may fulfill the requirement of Neb. Rev. Stat. § 29-2204.02(3) (Reissue 2016) to state on the
record its reasoning as to why probation is not imposed by a combination of the sentencing hearing and sentencing order.
7. Sentences: Penalties and Forfeitures: Appeal and Error. Generally,
where no objection is made at a sentencing hearing when a defendant
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. DAWN
Cite as 320 Neb. 342
is provided an opportunity to do so, any claimed error is forfeited and
is not preserved for appellate review.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Bergevin, JJ.
Funke, C.J.
INTRODUCTION
Schuyler D. Dawn, Jr., appeals his sentence in the district
court for Lancaster County, Nebraska, to a term of imprisonment for a Class IV felony. Dawn claims the district court
failed to follow Neb. Rev. Stat. § 29-2204.02 (Reissue 2016)
when it found that he was not a suitable candidate for probation
and instead sentenced him to imprisonment. Dawn also claims
the district court erred in denying his request to continue sentencing, in failing to notify him of his right to appeal as is
required under § 29-2204.02(3), and in failing to provide the
truth-in-sentencing advisement required under § 29-2204.02(7).
Finding no merit in those arguments, we affirm the judgment
of the district court.
BACKGROUND
Dawn was charged with two counts of theft by shoplifting,
$0 to $500, third or subsequent offense, after he stole three
pairs of sunglasses from an optometrist’s office. A charge of
resisting arrest, second or subsequent offense, was later added.
Ultimately, Dawn pled guilty to one count of theft by
shoplifting, $0 to $500, third or subsequent offense, and the
State dismissed the other two counts charged in this matter,
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320 Nebraska Reports
STATE V. DAWN
Cite as 320 Neb. 342
as well as a separate criminal matter in Lancaster County.
The district court accepted Dawn’s plea and found him guilty
of the underlying offense.
An enhancement and sentencing hearing was subsequently
held. At that hearing, the court received evidence of Dawn’s
prior shoplifting convictions and found that those convictions
were valid prior convictions for purposes of enhancement,
making the current offense a Class IV felony.
The court then proceeded to sentencing. The court began
by stating that it had received, reviewed, and considered the
presentence investigation report, as well as a substance abuse
evaluation of Dawn completed by an inpatient treatment center 3 days before the sentencing hearing. The court asked if
there were any additions or corrections that needed to be made
to this information, and Dawn’s counsel stated that Dawn had
recently undergone knee surgery and was scheduled to start
physical therapy in several weeks. Dawn’s counsel also stated
that Dawn was on the waitlist at an inpatient treatment center
and could start treatment there as soon as 3 days after the
sentencing hearing.
Dawn exercised his right to allocution and stated, as relevant here, that he went to the inpatient treatment center
because he “want[ed] help” with his “drug and alcohol problem.” Dawn said that he believed such treatment would “get
[him] back on the right track and save [his] life.” Dawn asked
the court to grant a continuance so that he could receive
inpatient treatment.
The court then clarified that two other criminal cases
against Dawn were still pending in Saline County before
engaging in a colloquy with Dawn about certain discrepancies between the presentence investigation report and his
substance abuse evaluation. As is relevant here, the presentence investigation report stated that Dawn last used alcohol, cocaine, and methamphetamine at least 8 years ago.
However, the substance abuse evaluation stated that Dawn
had used alcohol, “K2,” cocaine, and methamphetamine on
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320 Nebraska Reports
STATE V. DAWN
Cite as 320 Neb. 342
the day of the evaluation—which, as previously noted, was
completed 3 days before the sentencing hearing. The district
court suggested that Dawn had changed his account of when
he last used certain substances because he knew that if he
said he was “actively using cocaine that [he’s] going to get
a residential treatment recommendation.” The district court
also seemed skeptical of Dawn’s claim that he used all those
substances while recovering from knee surgery.
After that colloquy, the court asked the State’s views about
Dawn’s request for a continuance. The State objected to the
request, noting that Dawn had previously been granted a continuance without any objection by the State and that Dawn had
requested other continuances before he entered his plea. The
State opined that in its belief, Dawn intended to “drag this case
on as long as possible” to avoid going to prison.
The court denied Dawn’s request for a continuance and
asked for any further comments about sentencing. At that
point, Dawn’s counsel asked the court to consider the “relatively low dollar value” of the theft; the fact that the property
was recovered; Dawn’s history, character, condition, and current circumstances; his substance abuse evaluation and the
recommendation for inpatient treatment; his “other medical
needs”; the dependents who rely on him for support; and
the nonviolent nature of the offense. The apparent import of
those factors was that the court should be lenient in sentencing Dawn. However, Dawn’s counsel did not advocate for any
specific sentence.
The court sentenced Dawn to a “determinate term” of
2 years’ of imprisonment and 0 months’ post-release supervision. The court said that it took into consideration the “generous plea offer” Dawn received in the present matter. The court
also said:
[It finds], pursuant to Nebraska law, that there are
substantial and compelling reasons why [Dawn] cannot
effectively and safely be supervised in the community
on probation.
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320 Nebraska Reports
STATE V. DAWN
Cite as 320 Neb. 342
Having regard for the nature and circumstances of the
crime, and [Dawn’s] history, character, and condition . . . ,
the [c]ourt finds that imprisonment . . . is necessary for
the protection of the public because the risk is substantial
that[,] during any period of probation[, Dawn] would
engage in additional criminal conduct, and because a
lesser sentence would depreciate the seriousness of
[Dawn’s] crime and promote disrespect for the law.
....
The amount of time [Dawn] must serve before being
released is set forth in Nebraska law.
The language of the sentencing order generally mirrored that of
the sentencing hearing.
Dawn timely appealed the order of the district court, and we
moved the matter to our docket. 1
ASSIGNMENTS OF ERROR
In his brief on appeal, Dawn assigned, reordered, renumbered, and restated, that the district court erred in (1) denying his motion to continue sentencing, (2) failing to follow
§ 29-2204.02 when it sentenced him to imprisonment instead
of probation, (3) failing to provide notice of his right to appeal
as required under § 29-2204.02(3) and a truth-in-sentencing
advisement as required under § 29-2204.02(7), and (4) imposing an indeterminate sentence. However, at oral argument
before this court, Dawn conceded that the sentence imposed
by the district court was a determinate sentence, and he withdrew his claim that the district court erred in imposing an
indeterminate sentence.
STANDARD OF REVIEW
[1,2] A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
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STATE V. DAWN
Cite as 320 Neb. 342
not be disturbed on appeal absent an abuse of discretion. 2
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason,
and evidence. 3
[3] A determination of whether there are substantial and
compelling reasons under § 29-2204.02(2)(c) that an offender
cannot effectively and safely be supervised in the community
on probation is within the trial court’s discretion and will not
be reversed on appeal absent an abuse of discretion. 4
ANALYSIS
Denial of Motion to
Continue Sentencing
Dawn argues that the district court erred in denying his
motion to continue sentencing so that he could attend inpatient treatment for substance abuse. Dawn claims that his
motion was “rejected . . . out of hand,” 5 with the apparent
implication that the district court should have provided some
further discussion of its decision on the record. Dawn also
argues that the denial of his motion for a continuance was detrimental to him because had he been granted a continuance,
he “would have engaged” 6 in the planned course of inpatient
treatment and thus been in a better position to show that there
were “no longer substantial and compelling reasons why he
could not effectively and safely be supervised in the community on probation.” 7 The State concedes that as a result of the
court’s decision to deny the continuance, Dawn was unable
2
State v. Ramos, 319 Neb. 511,
23 N.W.3d 640 (2025).
3
Id.
4
See State v. Baxter,
295 Neb. 496,
888 N.W.2d 726 (2017).
5
Brief for appellant at 14.
6
Id.
7
Id. at 15.
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320 Nebraska Reports
STATE V. DAWN
Cite as 320 Neb. 342
to engage in the recommended inpatient treatment. However,
the State argues that Dawn cannot show he was prejudiced by
the denial of his request for a continuance, because there is
nothing in the record to suggest that the inpatient treatment
would have been successful or that completion of the inpatient treatment would have resulted in a lesser sentence, and
that other factors supported a sentence of imprisonment.
[4,5] As previously noted, we review a trial court’s decision whether to grant a continuance for an abuse of discretion. A court does not abuse its discretion in denying
a continuance unless it clearly appears that the party seeking
the continuance suffered prejudice because of that denial. 8
Also, where the criminal defendant’s motion for continuance
is based upon the occurrence or nonoccurrence of events
within the defendant’s own control, denial of such motion is
no abuse of discretion. 9
We agree with the State that the district court did not
abuse its discretion in denying Dawn’s motion for a continuance. Dawn cites no authority requiring the district court to
provide further elaboration when denying a request for a
continuance, and he relies upon speculation that had he been
granted the continuance, he would have successfully completed the recommended inpatient treatment and then would
have received a sentence of probation. However, as the State
observes, there is nothing in the record before us on appeal to
support such speculation. To the contrary, Dawn’s argument
effectively ignores other information in the record that, as
discussed later in the opinion, could have been seen to support a sentence of imprisonment even if Dawn had completed
inpatient treatment.
The record also shows that Dawn had already been granted
at least nine continuances of pretrial conferences or of the
8
See Ramos, supra note 2.
9
State v. Rezac, 318 Neb. 352,
15 N.W.3d 705 (2025).
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STATE V. DAWN
Cite as 320 Neb. 342
scheduled trial, a factor that would seem to support the State’s
claim that Dawn asked to continue sentencing to delay matters.
Moreover, the record before us shows that Dawn’s decision to
seek substance abuse treatment was made shortly before the
sentencing hearing. However, only 3 months earlier, when a
probation officer interviewed Dawn for purposes of the presentence investigation report, Dawn stated that his last use
of alcohol, cocaine, or methamphetamine was at least 8 years
ago and that he “did not believe he was in need of substance
abuse treatment at [that] time.” At some point in the intervening period, Dawn apparently changed his thinking regarding
inpatient treatment and decided that such treatment was necessary to “save [his] life.” While this change in Dawn’s thinking
may reflect a genuine epiphany about his need for treatment,
it does not change the fact that Dawn was in control of when
he admitted his substance abuse issues and when he sought
inpatient treatment. 10
Alleged Failure To Follow § 29-2204.02
When Sentencing Dawn to Imprisonment
Dawn also argues that the district court failed to follow
§ 29-2204.02 when it found that he was not a suitable candidate for probation and instead sentenced him to imprisonment
for a Class IV felony. The State disagrees.
10
See Ben M. v. State, DHSS, OCS, 204 P.3d 1013 (Alaska 2009) (trial court
did not abuse its discretion in denying appellant’s request to continue
case so that he could enter substance abuse treatment where appellant
had opportunity to enter treatment while case was pending). See, also,
State v. Svoboda, No. A-22-220, 2023 WL 364522 (Neb. App. Jan. 24,
2023) (selected for posting to court website) (trial court did not abuse
its discretion in denying defendant’s request for continuance to complete
residential treatment program where defendant was terminated from one
treatment program for failure to follow rules and entered second treatment
program days before sentencing); State v. Mitchell, No. A-21-062, 2021
WL 2325325 (Neb. App. June 8, 2021) (selected for posting to court
website) (similar).
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. DAWN
Cite as 320 Neb. 342
Our general standard with respect to sentencing decisions is
that an appellate court will not disturb the trial court’s choice
of whether to order probation or incarceration absent an abuse
of discretion by the trial court. 11 However, with § 29-2204.02,
the Legislature effectively limited the courts’ discretion in
choosing between probation and incarceration with respect to
Class IV felonies by prescribing as follows:
(2) If the criminal offense is a Class IV felony, the
court shall impose a sentence of probation unless:
(a) The defendant is concurrently or consecutively
sentenced to imprisonment for any felony other than
another Class IV felony;
(b) The defendant has been deemed a habitual criminal
pursuant to section 29-2221; or
(c) There are substantial and compelling reasons why
the defendant cannot effectively and safely be supervised
in the community, including, but not limited to, the criteria
in subsections (2) and (3) of section 29-2260. . . .
(3) If a sentence of probation is not imposed, the court
shall state its reasoning on the record . . . .
Neb. Rev. Stat. § 29-2260 (Reissue 2016), in turn, authorizes a court, sentencing an offender convicted of a crime for
which mandatory or mandatory minimum imprisonment is not
required, to “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 is necessary to protect the public for
one of three reasons. As is relevant here, one reason is that
there is a substantial risk that during a period of probation,
the offender would engage in additional criminal conduct. 12
Another reason is that a lesser sentence would depreciate
the seriousness of the offender’s crime or promote disrespect
11
See, e.g., Baxter, supra note 4.
12
§ 29-2260(2)(a).
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STATE V. DAWN
Cite as 320 Neb. 342
for the law. 13 Section 29-2260(3) then specifies over a dozen
grounds that, while not controlling the discretion of the court,
weigh in favor of “withholding sentence of imprisonment.”
Those grounds include that the crime did not threaten or cause
serious harm and that the offender’s imprisonment would
entail excessive hardship to his or her dependents. 14
[6] Under the standard of review previously noted, a determination of whether there are substantial and compelling reasons under § 29-2204.02(2)(c) as to why community supervision will not be an effective and safe sentence is within the trial
court’s discretion and will not be reversed on appeal absent an
abuse of discretion. The court may fulfill the requirement of
§ 29-2204.02(3) to state on the record its reasoning as to why
probation is not imposed by a combination of the sentencing
hearing and sentencing order. 15
In the present case, there is no suggestion that a sentence of
probation was not presumed under § 29-2204.02(2)(a) or (b),
because Dawn was concurrently or consecutively sentenced
to imprisonment for another felony or had been deemed a
habitual criminal. As such, the questions before us are whether
the district court abused its discretion in concluding that under
§ 29-2204.02(2)(c), there were substantial and compelling reasons why Dawn could not effectively and safely be supervised
in the community, and whether the district court adequately
stated on the record its reasoning for so concluding.
Dawn argues that the district court abused its discretion
in sentencing him to imprisonment because he had a “clear
intent . . . to change his life” and probation would have given
him the tools to do that. 16 Relatedly, Dawn argues the district
court’s statement of its reasoning in sentencing him to
13
§ 29-2260(2)(c).
14
§ 29-2260(3)(a) and (k).
15
See, e.g.,
Baxter, supra note 4.
16
Brief for appellant at 12.
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STATE V. DAWN
Cite as 320 Neb. 342
imprisonment and not probation was insufficient, because the
district court merely recited the language of §§ 29-2204.02(2)(c)
and 29-2260(2)(a) and (c) without showing how it reached the
conclusion that there were substantial and compelling reasons
why he could not effectively and safely be supervised in
the community.
We turn first to the district court’s statement of its reasoning. While we agree this statement left much to be desired,
we find that it was sufficient insofar as we can discern the
court’s reasoning from its statements at the sentencing hearing and its written sentencing order. 17 Dawn is correct that
the only factor mentioned by the district court immediately
before pronouncing his sentence was the “generous plea offer”
that Dawn received in the present matter. However, earlier
in the sentencing hearing, the district court stated that it had
considered the presentence investigation report, asked about
the status of the two pending criminal cases against Dawn in
Saline County, and expressed skepticism about Dawn’s motive
in seeking inpatient treatment 3 days prior to the sentencing
hearing and his claim to have used alcohol, “K2,” cocaine, and
methamphetamine while recovering from knee surgery.
Collectively, the factors referenced by the district court
suggested, at a minimum, the sentencing court did not believe
that Dawn was trustworthy and that he truly intended to
change the pattern of his life. Additionally, it seems clear
that the court believed there was a substantial risk that Dawn
would engage in additional criminal conduct during a period
of probation. The presentence investigation report showed that
Dawn had been charged or convicted in 72 separate criminal
17
See, State v. Dyer, 298 Neb. 82, 91,
902 N.W.2d 687, 694 (2017) (trial
court’s comments at sentencing hearing “filled in the missing pieces of
[its] reasoning”); State v. Becher, No. A-24-374, 2024 WL 5134982,
(Neb. App. Dec. 17, 2024) (selected for posting to court website); State
v. Whitaker, No. A-19-561, 2020 WL 1921748 (Neb. App. Apr. 21, 2020)
(selected for posting to court website).
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STATE V. DAWN
Cite as 320 Neb. 342
cases, dating back to 1998; was at a “[v]ery [h]igh” risk to
reoffend; obtained 78 misconduct reports while incarcerated
with the Nebraska Department of Correctional Services; and
previously had probation revoked in several cases. 18 The
presentence investigation report also showed that the two
cases pending in Saline County, as well as the other matter in
Lancaster County that was dismissed as part of the plea agreement in the present case, were all like the present case in that
they involved theft offenses. In fact, one of the few “areas of
strength” that the presentence investigation report noted for
Dawn was that he “scored in the low or very low risk range
for Alcohol/Drug Problem.” However, as previously noted,
Dawn’s statements about when he last used certain substances
were different in the presentence investigation report and the
substance abuse evaluation, and the district court was clearly
troubled by those discrepancies.
We see no merit to Dawn’s argument that the district court
could not consider the plea agreement in the present matter
because it is not a factor listed in § 29-2260. Dawn is correct
that a “generous plea offer” is not listed in § 29-2660(2) as a
ground for finding that imprisonment of the offender is necessary for protection of the public. However, we see nothing
in § 29-2660(2) that precludes a court from considering the
circumstances surrounding a plea agreement in determining
whether one of the grounds set forth in § 29-2660(2) is present. For example, the circumstances of a plea agreement may
be relevant to determining whether there is a substantial risk
that the offender would engage in additional criminal conduct
during a period of probation.
Nor are we persuaded by Dawn’s argument that the district court’s skepticism of his account of using cocaine
18
Cf. § 29-2204.02(2)(c) (fact that defendant has not previously succeeded
on probation is not, standing alone, substantial and compelling reason why
he or she cannot effectively and safely be supervised in community, but
may be considered in conjunction with other reasons).
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STATE V. DAWN
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while recovering from knee surgery was relevant only to the
question of whether to grant his motion to continue sentencing and not to his sentence. The hearing was an enhancement
and sentencing hearing, and Dawn cites no authority to support the view that a court is required to ignore the factors that
it considered in denying a continuance of sentencing when it
imposes a sentence.
Finally, turning from the sufficiency of the district court’s
statement of its reasoning when sentencing Dawn to the substance of that sentence, we see no error or abuse of discretion.
On appeal, Dawn notes his need for treatment as the primary
basis for why he should have been sentenced to probation and
not imprisonment. Previously, at the sentencing hearing, Dawn
identified other factors, some of which are arguably encompassed by § 29-2260(3). However, Dawn does not dispute that
his sentence was within the statutory limits. 19 Nor does he suggest that the district court failed to consider the relevant factors
customarily considered in sentencing 20 or based its decision on
irrelevant considerations. 21
[7] However, even assuming that the sentencing court failed
to comply with § 29-2204.02(3), the outcome would be the
same, because Dawn forfeited any argument that the district
court failed to sufficiently state its reasoning on the record
when imposing a sentence of imprisonment. Generally, where
no objection is made at a sentencing hearing when a defendant
is provided an opportunity to do so, any claimed error is forfeited and is not preserved for appellate review. 22 The record
here shows that after sentencing Dawn to a determinate term
of 2 years’ imprisonment, the district court asked, “Anything
further today?” Counsel for Dawn, as well as counsel for the
State, said that there was not.
19
See
Neb. Rev. Stat. § 28-105 (Cum. Supp. 2024).
20
See, e.g., State v. Sutton,
319 Neb. 581,
24 N.W.3d 43 (2025).
21
See, e.g., State v. Morton,
310 Neb. 355,
966 N.W.2d 57 (2021).
22
Cf. State v. Pereira,
284 Neb. 982,
824 N.W.2d 706 (2013).
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Notice of Right to Appeal and
Truth-in-Sentencing Advisement
In addition, Dawn argues that the district court erred in
failing to provide notice of his right to appeal as required
under § 29-2204.02(3) and a truth-in-sentencing advisement as
required under § 29-2204.02(7). The State concedes that the
district court did not advise Dawn of his right to appeal and
did not “fully fulfill its mandate” as to the truth-in-sentencing
advisement. 23 However, the State argues that those errors were
“negligible” and that Dawn forfeited any error in this regard
by failing to object and bring the errors to the court’s attention
at sentencing. 24 The State also argues that any error in failing
to notify Dawn of his right to appeal was clearly harmless
because Dawn perfected a timely direct appeal and, thus, was
not prejudiced by the court’s failure to provide notice of the
right to appeal.
We agree with the State that Dawn also forfeited his right
to be notified of his right to appeal by failing to object and
bring the errors to the court’s attention at sentencing. 25 The
State is also correct that any error here is harmless because
Dawn perfected a timely direct appeal and, as such, cannot
show he was prejudiced by the failure to notify him of his
right to appeal.
We take a similar view of Dawn’s claim regarding the truth-in-sentencing advisement. Because Dawn failed to object and
bring the error to the court’s attention at sentencing, he forfeited that claim too. 26
When a claim is forfeited—as Dawn’s claims regarding
the district court’s failure to articulate the court’s reasoning
for not placing him on probation, to give him notice of his
23
Brief for appellee at 18.
24
Id.
25
See, e.g., State v. Svoboda, 13 Neb. App. 266,
690 N.W.2d 821 (2005);
Whitaker, supra note 17.
26
Cf.,
Svoboda, supra note 25; Whitaker, supra note 17.
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right to appeal, and to provide a truth-in-sentencing advisement were—a court may in its discretion review the claim for
plain error. 27 We see no plain error here.
CONCLUSION
There is no merit to Dawn’s claims regarding his motion to
continue sentencing and the requirements of § 29-2204.02. As
such, we affirm the judgment of the district court.
Affirmed.
Freudenberg, J., not participating.
27
See State v. Horne, 315 Neb. 766,
1 N.W.3d 457 (2024).
Cassel, J., concurring.
I agree entirely with the majority opinion. If a sentencing court entirely abdicates its statutory obligation under
§ 29-2204.02(3) and if an appellant adequately preserves
the issue, I would address it on appeal. But if the assertion
is merely that State v. Baxter 1 required more explanation or
better reasoning, I would be open to reconsidering what we
said there.
1
State v. Baxter, 295 Neb. 496,
888 N.W.2d 726 (2017).
Papik, J., concurring in part and concurring in the judgment.
I agree with the outcome in this case and agree with the
majority opinion’s analysis with the exception of one issue:
I disagree with the majority’s determination that the district
court complied with § 29-2204.02(3) by stating its reasoning
as to why Dawn could not effectively and safely be supervised
on probation.
Forfeiture and Absence of Plain Error.
The majority opinion resolves the issue of whether the district court complied with § 29-2204.02(3) on two grounds. I
agree with one and disagree with the other.
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First the area of agreement: I agree with the majority that
Dawn forfeited any argument that the district court did not
comply with § 29-2204.02(3). As the majority points out,
Dawn did not object at sentencing on the grounds that the
district court did not adequately state its reasoning for not
imposing a probationary sentence. I agree with the majority
that the failure to object to the adequacy of a sentencing court’s
explanation for a sentence forfeits any complaint about that
explanation on appeal, leaving it subject to only plain error
review. See, e.g., U.S. v. Chavarria-Ortiz,
828 F.3d 668, 671
(8th Cir. 2016) (“[o]ur cases routinely have conducted plainerror review of claims that a district court failed adequately to
explain a . . . sentence”).
I also agree that Dawn cannot show that the district court’s
explanation amounted to plain error. Plain error is a “rigorous” standard.
Id. We have said that courts should find plain
error “only in those rare instances where it is warranted,” as
opposed to invoking it “routinely.” State v. McSwine,
292
Neb. 565, 582, 583,
873 N.W.2d 405, 418 (2016). Generally,
we will find plain error only when a miscarriage of justice
would otherwise occur. State v. Senteney,
307 Neb. 702,
950
N.W.2d 585 (2020). Plain error is error plainly evident from
the record and of such a nature that to leave it uncorrected
would result in damage to the integrity, reputation, or fairness
of the judicial process. Peterson v. Brandon Coverdell Constr.,
318 Neb. 342,
15 N.W.3d 698 (2025). I do not believe there is
a risk that the integrity, reputation, or fairness of the judicial
process would be damaged if Dawn’s sentence is left in place
regardless of the adequacy of the district court’s explanation
for its sentence.
Compliance With § 29-2204.02(3).
After finding that Dawn forfeited any argument based on
§ 29-2204.02(3) and is unable to demonstrate plain error, I
would say no more about the issue. The majority opinion, however, relies on forfeiture as only a backstop, first concluding
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that the district court complied with § 29-2204.02(3) even
under our ordinary standard of review. I disagree with this
determination and explain why in the paragraphs below.
As the majority opinion explains, courts generally have discretion to order probation or incarceration when both are permitted by statute. The Legislature, however, has taken action to
limit the sentences that may be imposed for Class IV felonies,
like the one at issue in this case. When sentencing a defendant
for a Class IV felony, § 29-2204.02 requires the court to
impose a sentence of probation unless one of three circumstances is present. In this case, there is no dispute that two of
those circumstances do not apply. All thus agree that a sentence of incarceration is permitted in this case only if “[t]here
are substantial and compelling reasons why the defendant
cannot effectively and safely be supervised in the community,
including, but not limited to, the criteria in subsections (2) and
(3) of section 29-2260.” See § 29-2204.02(2)(c).
The Legislature has additionally provided that if a sentencing court chooses to sentence a defendant to incarceration,
rather than probation, the court must “state its reasoning on
the record.” § 29-2204.02(3). We have said that this section
means that a court “should not simply supply a list of reasons,
but, instead, should demonstrate how it reached its determination that there were substantial and compelling reasons” why
the defendant cannot effectively and safely be supervised
in the community. State v. Baxter,
295 Neb. 496, 506,
888
N.W.2d 726, 734 (2017). In this case, then, the district court
was required to explain how it concluded that there were substantial and compelling reasons why Dawn could not effectively and safely be supervised in the community.
While the district court stated that it had found there were
substantial and compelling reasons why Dawn could not effectively and safely be supervised in the community, it did not,
in my view, explain how it reached that conclusion. Prior
to its finding that Dawn could not effectively and safely be
supervised in the community, the district court did say that
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it would “take into consideration” the “generous” plea agreement Dawn received in this case. The district court did not,
however, state that Dawn’s plea agreement was a basis for its
conclusion that he could not effectively and safely be supervised in the community.
Aside from its statement regarding the plea agreement, the
district court stated only that it found that imprisonment was
necessary to protect the public because there was a risk that
Dawn would engage in additional criminal conduct while on
probation and because a lesser sentence would depreciate the
seriousness of his crime and promote disrespect for the law.
Those are traditional factors courts are to consider in any case
when deciding whether to impose a sentence of imprisonment or a sentence of probation, see § 29-2260(2), and we
have additionally recognized they are valid considerations
when determining whether there are substantial and compelling reasons why a defendant cannot effectively and safely
be supervised on probation for purposes of § 29-2204.02(c),
see State v. Dyer,
298 Neb. 82,
902 N.W.2d 687 (2017). We
have also concluded, however, that merely listing such factors
does not provide the “reasoning” required by § 29-2204.02(3).
See State v. Dyer, supra,
298 Neb. at 91, 902 N.W.2d at 694
(concluding that sentencing order listing traditional sentencing criteria “merely listed the reasons and did not provide the
‘reasoning’ required by § 29-2204.02(3)”).
The majority acknowledges that the district court’s explanation for its conclusion that Dawn could not effectively and
safely be supervised “left much to be desired,” but nonetheless finds it sufficient. To do so, the majority relies on the
fact that earlier in the sentencing hearing, the district court
said it considered the presentence investigation report, asked
a question about the status of two other pending cases against
Dawn, and, while considering a motion to continue sentencing, expressed skepticism about Dawn’s claim to have used
alcohol and illegal drugs while recovering from surgery.
All of this, says the majority, “suggested” that the district
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court did not believe Dawn was trustworthy. Additionally, the
majority concludes that because the presentence investigation report included an extensive criminal history, “it seems
clear” that the district court believed there was a substantial
risk that Dawn would engage in criminal conduct during a
period of probation. If the district court had actually stated
that Dawn could not effectively and safely be supervised on
probation either because his representations showed he was
not trustworthy or because his criminal history suggested he
would engage in criminal conduct during probation, I would
not hesitate to find that there were substantial and compelling
reasons supporting incarceration. Indeed, the record suggests
there were all kinds of things that could have been said to
support a determination that Dawn was a poor candidate for
probation (the existence of which undermine any claim that
there was plain error here). But here, the district court did not
explain itself.
The Legislature has required that a trial court “state its reasoning on the record” when it finds that a person convicted of
a Class IV felony cannot safely and effectively be supervised
in the community. See § 29-2204.02(3). In cases in which
the district court does not do so and in which the issue is
adequately preserved, I would find that the district court failed
to comply with the duty the Legislature has given it, rather
than looking for evidence in the record that may support the
outcome but that was not articulated by the district court.
Conclusion.
Because Dawn forfeited any argument that the district court
failed to comply with § 29-2204.02(3) and cannot demonstrate
plain error and because I agree with the majority’s analysis
of all other issues, I would affirm his sentences. In my view,
however, it is both unnecessary and incorrect to say that the
district court complied with § 29-2204.02(3).
Miller-Lerman, J., joins in this concurrence.
