LINCOLN — The Nebraska Court of Appeals has affirmed a probationary sentence for an Amherst man convicted of felony incest and attempted felony sexual assault of a girl in 2017.
Buffalo County District Court Judge John Marsh sentenced the 19-year-old man to five years probation for convictions of attempted incest and attempted second-degree sexual assault, both felonies, in July 2018. The incidents happened between Oct. 1, 2017, and Nov. 30, 2017.
Buffalo County prosecutors appealed the decision, saying the ruling was too lenient, and asked the man be sentenced to prison. They asked Marsh if he did place the man on probation, that the man be given the maximum 90 days in jail.
The man faced up to six years in prison for both charges with no minimum incarceration.
The Court of Appeals issued their decision this morning. The Hub is not revealing the man’s name in an effort to protect the victim, who is a minor.
Sign up for Kearney Hub daily news updates
Want to read more local content like this? Subscribe to the Kearney Hub's daily headlines newsletter.
In its six-page ruling the court said Marsh’s sentence was appropriate and within the statutory guidelines, and that Marsh didn’t abuse his discretion. The opinion says the man was assessed at a very low risk to reoffend.
Whether they’re reviewing a sentence for leniency or excessiveness, the ruling said a sentence that is within the statutory limits won’t be overturned unless there appears to be an abuse of the judge’s discretion.
The court ruled that Marsh didn’t abuse his discretion.
“In light of all the relevant sentencing considerations, the sentences were not based upon reasons that were untenable or unreasonable, nor was the court’s action clearly against justice or conscientious, reason and the evidence,” said the opinion.
During the man’s July 2018 sentencing hearing his attorney Justin Herrmann of Kearney argued for probation for the man. Herrmann quoted an evaluation of the man, which said his client had no prior criminal history, a strong work ethic and a strong support system.
The man was in his late teenage years when the events occurred, Herrmann said, and there was no doubt in his mind that the man would be “tremendously successful on probation.” At the time, the man already was participating in an outpatient sexual offense specific treatment program, the ruling said.
Deputy Buffalo County Attorney Melanie Young asked Marsh for justice for the victim who she said had been subjected to sexual penetration, sexual contact and threats for years. Young argued the man hadn’t been truthful in his sex offender evaluation by not disclosing all the times he subjected the girl to sexual assault, that the evaluation wasn’t accurate and shouldn’t be relied upon.
Marsh said it was almost incomprehensible what the man did to the victim and the family, and that he considered not only the man’s age and lack of a record, and sentenced him based on the individual circumstances. According to Marsh, the evaluation procedure used by state probation has been used for at least a decade and he could only think of two people during his previous 10 years of criminal law practice who scored lower than the man.
If it weren’t for the man’s “low risk,” Marsh said he would have sent him to jail for up to 90 days as a condition of probation. Marsh said he tried to balance the effect on the man and the victim, and thought 30 days was appropriate under the circumstances.