## Facts

- While living with his girlfriend, Richard W. Thompson engaged in inappropriate sexual contact with his girlfriend’s 12-year-old daughter, E.G.
- E.G.’s victim-impact statement asked the court to send Thompson to prison to prevent him from harming other children.
- A counselor who evaluated E.G. stated that Thompson had “groomed and seduced” E.G. over time, opined that Thompson had almost certainly committed similar misconduct in the past, and recommended a 10-year prison sentence; however, the record contained no evidence proving prior similar acts.
- Thompson had steady employment, and his criminal history did not include violent offenses.
- A presentence investigation report included a psychologist’s evaluation concluding Thompson did not display traits of a sexual predator but instead had impulse-control problems and acted opportunistically.
- The presentence materials recommended intensive probation with strict limits, including no unsupervised contact with potential child victims.
- Under a plea agreement, Thompson entered no contest pleas to two counts of sexual assault of a child, and the State agreed that it would remain silent at sentencing; the State made no sentencing argument consistent with that agreement.
- The trial court imposed two consecutive terms of five years of intensive supervised probation (a total of 10 years), with conditions aimed at supervision and treatment rather than incarceration.
- The judge stated he was relieved he did not have to send Thompson to prison, expressing concern that Thompson’s size and personality would make him a target in prison.
- The State appealed, claiming the probationary sentence was excessively lenient; Thompson argued the State waived any right to appeal by agreeing to remain silent at sentencing.

## Issues

1. Whether the State’s plea-bargain promise to “remain silent” at sentencing waived the State’s statutory right to appeal the sentence as excessively lenient.
2. Whether the trial court abused its discretion by imposing consecutive intensive probation (with no prison term) for two counts of sexual assault of a child.

## Decision

- The court held the State did not waive its statutory right to appeal by agreeing to remain silent at the sentencing hearing.
- The court held the probation-only disposition was excessively lenient and constituted an abuse of discretion.
- The sentences were vacated, and the case was remanded for resentencing.

## Legal Principles

- A prosecutor’s agreement to “remain silent” at sentencing limits what the State will say at the sentencing hearing; it does not relinquish the State’s statutory right to appeal a sentence unless the waiver is clearly part of the agreement.
- The State may appeal a sentence as “excessively lenient” under Nebraska’s sentence-appeal statutes, and appellate review asks whether the sentencing court abused its discretion.
- In deciding whether a sentence is excessively lenient, the reviewing court considers the seriousness of the offense and the sentencing record as a whole; a sentencing choice may be set aside when the court gives unreasonable weight to improper or marginal considerations and fails to give adequate weight to the gravity of the crimes and the need to protect the public.

## Conclusion

The Nebraska Court of Appeals ruled that the State’s promise to remain silent at sentencing did not bar a statutory leniency appeal, then concluded that probation alone for repeated sexual assault of a child was outside the range of reasonable sentencing choices where the trial court emphasized the defendant’s potential vulnerability in prison over the severity of the offenses; the court vacated the sentences and remanded for resentencing.


State v. Thompson, 735 N.W.2d 818 (2007)