Opinion
No. A-10-472
12-20-2011
STATE OF NEBRASKA, APPELLEE, v. COLTON NOVASCONE, APPELLANT.
S. Gregory Nelson, of Nelson Law Offices, for appellant. Jon Bruning, Attorney General, and George R. Love for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE V. NOVASCONE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge. Affirmed.
S. Gregory Nelson, of Nelson Law Offices, for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
PER CURIAM.
I. INTRODUCTION
Colton Novascone appeals the sentences imposed upon his plea to charges of criminal conspiracy and second degree assault in relation to the April 2009 homicide of Brian Carson in Douglas County, Nebraska. We do not find the sentences imposed to be an abuse of discretion, and we affirm.
II. BACKGROUND
The events giving rise to this case occurred in April 2009 and are recounted in detail in the opinion to the case reported at State v. King, 19 Neb. App. 410, ___ N.W.2d ___ (2011). As noted in that opinion, Brian was killed by his son, Ryan Carson (Carson), in Douglas County, Nebraska, by blunt force trauma to the head. As a result of the homicide and subsequent attempt to hide the crime, criminal charges were brought against a number of individuals, including Novascone.
Because Novascone ultimately entered a plea in this case, the record presented on appeal is primarily composed of the presentence report. Our review of the presentence report reveals that Novascone was interviewed in Mississippi by Omaha Police Department officers on three occasions on April 13 and April 14, 2009. During the first interview, Novascone denied any involvement in the events surrounding Brian's homicide and repeatedly suggested to officers that he did not see what had happened when Brian was killed. He maintained that he and Ryan King had accompanied Carson to Omaha, Nebraska, from Mississippi to get a car, that Carson gave them money and told them to return to Mississippi, and "[t]hat's it." He told officers "that's all we did for real" and "[t]hat's really all." During the first interview, officers repeatedly gave Novascone an opportunity to tell them what his involvement really was, and he continually maintained that he was not even in the house at the time of Brian's homicide. Novascone eventually acknowledged having been inside the house, but maintained that it was only to get "something to eat" and that he and King then left. The first interview lasted approximately 1¾ hours.
Approximately 2 hours after the first interview, officers interviewed Novascone for a second time. In that interview, officers notified Novascone that he was being arrested based on information received during other interviews and contradictions with the information he had given in his first interview. Novascone refused to speak to officers until his mother was present.
The next day, officers interviewed Novascone for a third time, this time with his mother present. During that interview, Novascone again began by denying having seen what actually happened to Brian and maintaining that he and King had left and returned to Mississippi before anything happened to Brian. He eventually acknowledged that Carson had told them during the trip from Mississippi to Omaha that he was going to kill Brian and that Carson had asked for help. Eventually, he admitted to being in the room during the homicide and confirmed that King had left the room when Brian arrived and was attacked. After acknowledging that he was in the room, Novascone maintained to officers that he did not have any kind of weapon in his hand and denied having struck Brian, although he acknowledged helping to clean up the scene. Eventually, Novascone acknowledged that he had a wrench in his hand during the attack on Brian, but he continued to deny having actually struck Brian. The third interview lasted approximately 1½ hours.
On June 16, 2009, Novascone was charged by information with criminal conspiracy and murder in the first degree. In the information, the State alleged that Novascone had made plans to travel to Omaha with coconspirators, had traveled to Omaha from Mississippi, had gone to a specified location for the purpose of killing Brian, and did kill Brian. The State also alleged that Novascone "purposely and with deliberate and premeditated malice" had killed Brian.
On February 8, 2010, Novascone appeared before the district court and entered a plea of guilty to charges of criminal conspiracy and second degree assault and, in exchange, the State dismissed the first degree murder charge. The factual basis provided to support the pleas included facts concerning Novascone, King, and Carson traveling from Mississippi to Omaha and discussing Carson's plan to kill Brian. The factual basis also included facts concerning the actual attack on Brian, including that Novascone "did strike [Brian] in the head at least one time with a wrench and assisted while . . . Carson continued to strike and stomp on [Brian] to his death." Novascone affirmatively acknowledged that the factual basis was accurate.
On April 13, 2010, Novascone returned to court for sentencing. At the sentencing hearing, Novascone's counsel argued for leniency and emphasized to the court that Novascone had been only 16 years of age at the time of this crime, had borderline intellectual functioning, and had absolutely no prior criminal history, as well as having been a model inmate while incarcerated pending disposition of this case. Novascone's counsel also pointed to letters of support and letters urging leniency from, among others, psychologists, teachers, and the detention manager who had overseen Novascone's incarceration during the pendency of this case.
The court imposed sentences of 45 to 50 years' imprisonment on the conspiracy conviction and 3 to 5 years' imprisonment on the second degree assault conviction. This appeal followed.
III. ASSIGNMENT OF ERROR
The only assignment of error is that the sentences imposed by the district court were excessive and did not reflect consideration of the relevant mandatory sentencing factors.
IV. ANALYSIS
Novascone asserts on appeal only that the sentences imposed by the district court were excessive. He argues that consideration of relevant mandatory sentencing factors, such as his lack of prior criminal record, his age, his mentality, his education, and his conduct while incarcerated during the pendency of this case demonstrate that the sentences imposed were an abuse of discretion. We do not find an abuse of discretion, and we affirm the sentences imposed.
Recently, the Nebraska Supreme Court again set forth the governing principles of law in this jurisdiction concerning excessive sentence appeals. See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). When a trial court's sentence is within the statutory parameters, even at the maximum of the parameters, the sentence will be disturbed by an appellate court only when an abuse of discretion is shown. Id. 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 violence involved in the commission of the crime. Id.
In the present case, the sentences imposed are within the statutory parameters, albeit near the maximum end of the parameters. Novascone entered a plea to criminal conspiracy, a Class II felony offense, and to second degree assault, a Class IIIA felony offense. See Neb. Rev. Stat. §§ 28-202(4) and 28-309(2) (Reissue 2008). The statutory parameters provide that a Class II felony offense is punishable by 1 to 50 years' imprisonment. Neb. Rev. Stat. § 28-105(1) (Reissue 2008). The statutory parameters provide that a Class IIIA felony is punishable by up to 5 years' imprisonment. § 28-105(1). As such, the sentences imposed upon Novascone, 45 to 50 years' imprisonment and 3 to 5 years' imprisonment, are within the statutory parameters and can be disturbed only upon a finding that the trial court abused its discretion.
We acknowledge that Novascone was only 16 years of age at the time of the offenses, was working on obtaining his diploma through the GED program, and had no prior criminal record. In addition, the presentence report includes numerous recommendation letters to the court urging leniency for Novascone, including letters from a chaplain, a crisis intervention psychologist, a jail teacher, and the detention manager who supervised Novascone while he was incarcerated during the pendency of this case.
Counterbalancing these considerations is that there is no dispute that the underlying offense leading to Novascone's pleas and convictions, the homicide of Brian, was a severe and violent offense and that Novascone was an active participant in the brutal killing of Brian. In addition, the presentence report demonstrates that Novascone was reluctant to be truthful and cooperative with the law enforcement investigation of the case. Although he would not admit to it during interviews with police officers, Novascone acknowledged at his plea that he did strike Brian with a wrench. He also assisted Carson and King with attempting to clean up the scene afterward. It is clear that Novascone's participation in the crime and reluctance to be honest and forthright with law enforcement warrants the substantial sentences.
The sentences imposed were within the statutory limits, and we do not find an abuse of discretion. As such, we affirm the sentences.
V. CONCLUSION
We find no abuse of discretion in the sentences imposed, which are within statutory limits. We affirm the sentences.
AFFIRMED.