Notably lenient Nebraska sex offense sentence reversed based on notably questionable judicial comments
This local press report, headlined "Sentence of probation in Nebraska sexual assault case overturned; judge called 12-year-old girl the 'aggressor'," reports on an interesting state appellate court sentencing reversal. Here are the basic details:
The Nebraska Court of Appeals has overturned a Kearney judge’s decision to put a man on probation for a felony sexual assault conviction. In its ruling issued Tuesday morning, the Court of Appeals said Buffalo County District Judge Bill Wright considered forbidden and irrelevant factors when he decided to place Taylor Welty-Hackett on probation.
In February, Wright placed Welty-Hackett on four years of intensive supervised probation for attempted felony first-degree sexual assault of a 12-year-old girl on Aug. 1, 2015, in Kearney. The charge was punishable by up to 20 years in prison.
The Court of Appeals ordered Welty-Hackett’s case be sent back to Buffalo County, where he will be resentenced by a different judge. A hearing date hasn’t been set. Buffalo County Attorney Shawn Eatherton had argued that Welty-Hackett’s sentence was too lenient. During the Feb. 23 sentencing hearing, Wright called Welty-Hackett’s victim the "aggressor" in the case saying, “She made the advances.”
Wright also went on to tell Welty-Hackett that he “screwed up big time, but I’ve got to find some way of bringing balance back into the system, given the nature of what’s been occurring in this community.”
The Court of Appeals said Wright’s statement about the promiscuity of teenage girls and the need to bring “balance” into sentencing sexual offenders went beyond consideration of the facts in the case. “If the sentencing judge (Wright) went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI (pre-sentence investigation report) which clearly justified the probationary sentences. ... Such failure caused the trial judge’s brief mention of the defendant’s small stature to become the focus of attention, when in reality it was but a minor point,” the Court of Appeals ruled.
The full opinion in Nebraska v. Welty-Hackett, No. A-17-239 (Neb. Ct. App. Dec. 19, 2017) (available here), makes for an interesting read. Here are some of its concluding paragraphs:
Unlike in State v. Thompson, the sentencing judge’s comments in this case were more than just a “brief mention” of factors not relevant to imposing sentence. The court’s discussion of the general promiscuity of teenage girls and the need to bring balance into the system was fairly substantial. Further, the comments had nothing to do with this particular defendant, in contrast to State v. Thompson. We recognize that the trial judge in this case indicated he had reviewed the PSR before the sentencing hearing. While the information contained in the PSR may well have supported the probationary sentence imposed, we cannot determine from the judge’s comments at sentencing how much weight was given to the permissible and relevant sentencing factors compared to the impermissible and irrelevant factors. We note, however, the court’s final comments before imposing sentence that Welty was getting the benefit of the court’s desire to “find some way of bringing some balance back into the system, given the nature of what’s been occurring in this community.”
Because it appears that the trial court’s reliance upon the impermissible and irrelevant sentence factors largely influenced his decision to impose probation, we find it necessary to vacate the sentence imposed and remand for resentencing before a different judge.
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