State of Nebraska v. Sydney L. Thieszen

The facts and circumstances pertaining to Thieszen’s crimes

are set out in greater detail in our decision resolving his

direct appeal.2 In 1987, 14-year-old Thieszen shot and killed

his 12-year-old sister, Sacha L. Thieszen. The State charged

Thieszen with first degree murder and use of a firearm in the

commission of a felony. Pursuant to a plea bargain, Thieszen

pled guilty to second degree murder and the use of a firearm

charge. In 1988, the district court imposed a sentence of life

imprisonment for second degree murder and a consecutive

sentence of 80 to 240 months’ imprisonment for the firearm

conviction.

On appeal, Thieszen claimed that the district court abused

its discretion in refusing to transfer his case to juvenile court

and in imposing an excessive sentence on the firearm charge.

We disagreed. We recognized that there was evidence Thieszen

could possibly be successfully rehabilitated during the approximately

4 years that the juvenile court maintained jurisdiction

over him, but that the record also supported the court’s findings

that the crime was violent and that Thieszen may require

treatment beyond the age of majority.3 We noted that the

sentence for the firearm conviction was within the statutory

limits, and we could not say that the court abused its discretion

in imposing it.4

2. First Postconviction

and Retrial

In 1994, Thieszen filed a motion for postconviction relief,

alleging that the operative information was defective because

it failed to allege he acted with malice. The district court sustained

the motion and vacated Thieszen’s convictions.

The State then filed a second amended information which

charged Thieszen with first degree murder and use of a firearm

to commit a felony. A jury convicted Thieszen of the charges.

The court again imposed sentences of life imprisonment for

the murder conviction and a consecutive term of 80 to 240

months’ imprisonment for the use of a firearm conviction.

3 See id.

4 See id.

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3. Second Postconviction

(a) Initial Proceedings

In 2013, Thieszen filed a motion for postconviction relief

pursuant to the decision in Miller.5 The district court vacated

Thieszen’s life sentence, and the State appealed. We affirmed

the judgment and remanded the cause for resentencing.6

(b) Mitigation Hearing

In March 2017, the district court received extensive evidence

during a mitigation hearing.

Thieszen was born into an abusive environment. His natural

mother was an alcoholic. On one occasion while she

was intoxicated, she tried to burn Thieszen’s eyes out with

a lighter. She stomped on him at one time. When Thieszen

was 2 or 3 years old, she threw him in a swimming pool. She

tried to run his hand through a meat grinder. Thieszen’s natural

mother also smashed his toys as punishment and locked

him in closets. When Thieszen was approximately age 4, he

was removed from his natural mother’s custody due to abuse

and neglect.

After multiple foster care placements, Thieszen was placed

with Edwin and Joyce Thieszen. Edwin and Joyce adopted

Thieszen when he was 9 years old. At that time, Edwin and

Joyce had three biological children and two other adopted

children. Initially, Thieszen wanted to keep his distance from

the family. But after approximately 1 year, he became very

lovable and outgoing.

Although Edwin and Joyce offered a stable and structured

environment, it may not have been a nurturing one. A doctor

who evaluated Thieszen in connection with the adoption process

expressed some reservation that the family’s strong religious

beliefs may be too restrictive for a child with Thieszen’s

background. Edwin and Joyce believed in corporal punishment

5 Miller v. Alabama, supra note 1.

6 See State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871 (2016).

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for rule violations. Edwin testified that he spanked the children

when no other punishment worked and that he used his

hand, a belt, a hose, or “whatever was handy.”

When Thieszen was 12 years old, there was “a sudden

drastic change in his behavior.” His report cards reflected

much lower grades, he ceased performing his chores properly,

and he began shooting holes in the family’s buildings and

machinery. In January 1986, Thieszen began seeing Sandra

Kroeker, a counselor, due to concerns about his poor grades

and dishonesty. Kroeker felt that there was a great correlation

between Thieszen’s adolescent behavior and the abusive

relationship Thieszen had with his natural mother. Kroeker

diagnosed Thieszen with a conduct disorder. She testified that

Thieszen was immature in his ability to formulate and maintain

relationships, to express himself, to engage in effective decisionmaking,

and to control impulses.

In December 1986, the family learned that Thieszen had

been sexually molesting one of the family’s foster children.

After that point, Thieszen did not feel loved or wanted by his

family. And he felt ostracized at school because the children

there knew of his sexual assault on his foster sister.

There was also evidence of voyeuristic behavior. One of

Thieszen’s sisters testified that she noticed him watching her

as she sunbathed. He pried open the doorjamb on the bathroom

and would consistently be outside the bathroom door

while she was showering or changing. At one point, Thieszen

entered her bedroom during the middle of the night and lifted

her bed covers.

By the time Thieszen was 13 or 14 years old, he did not

have a good relationship with Joyce. He did not feel comfortable

discussing issues with her. One of Thieszen’s classmates

testified that Thieszen often spoke about killing Joyce.

On the day of the murder, Thieszen wanted to run away

from home because he knew he was going to be punished

for a wrongdoing. When Sacha tried to stop Thieszen, he hit

her with a wooden rod, which caused bleeding. Sacha ran up

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the stairs to the bathroom, and as she was leaning over the

sink, Thieszen shot her in the back of the head. He put her

body in the bathtub and shot her twice more. Thieszen then

took the family’s van and left. He was apprehended in Kansas

days later.

The court received the testimony of two psychiatrists that

had been offered in connection with Thieszen’s request to

transfer his criminal case to juvenile court. One psychiatrist

opined that Thieszen was competent to stand trial and that he

was sane at the time of the offense. He found significance in

the type of abuse that Thieszen had experienced as a very small

child and the number of foster homes that he had been in prior

to adoption. He testified that Thieszen had a conduct disorder,

meaning that he displayed behavior that was not socially

acceptable. The other psychiatrist, who interviewed Thieszen

in December 1987, testified that Thieszen was not psychotic

and was of average to slightly above-average

intelligence.

Dr. Kayla Pope, a board-certified child and adolescent psychiatrist,

testified at the mitigation hearing. She testified that

neuroscience research demonstrated that adolescent brains

were different from adult brains. Adolescent brains were in

“developmental transition” and were “characterized by novelty

seeking, risk taking, poor judgment and increased submission

to peer pressure.” Pope explained that the prefrontal

cortex, which was the last part of the brain to develop, was

the part of the brain that overrides impulsive behavior and

allows the weighing of the risks and benefits of the decisions

one makes. Pope testified that there are significant differences

between the brains of a 14-year-old and a 17-year-old.

According to Pope, adolescents “are thinking in the moment”

and lack the ability to see the long-term consequences of

their actions.

Pope testified that high levels of stress can impact brain

development. Early trauma would impair a child’s developmental

process. According to Pope, abuse by Thieszen’s natural

mother would interfere with the formation of a secure

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attachment and would make Thieszen “untrusting” and “emotionally

and behaviorally very disregulated not knowing how

to respond to his environment.” Pope testified that Thieszen’s

early trauma and multiple placements in foster care affected

“how he would see the world and how he would respond to

the world.” And due to Thieszen’s experience of being abused

by his natural mother, Pope testified that corporal punishment

would be very inappropriate and would likely bring up prior

trauma and “make [Thieszen] more reactive as opposed to

helping him calm down and think through the situation.”

Pope reported that there was ample evidence that Thieszen

was impetuous beyond what was normal for his chronological

age. She testified that Thieszen was very immature,

impulsive, and unable to calm himself at the time of the murder.

Pope believed Thieszen was behaving in an impulsive

way at the time of the murder and that he did not appreciate

the consequences of what he was doing. She reported

that Thieszen “struggled to modify his behavior in light of

the consequences he faced.” She noted that Edwin stated

Thieszen would repeatedly misbehave and would say that he

did not know why he did the things he did. As to Thieszen’s

intellectual capacity, Pope testified that he had a very high

IQ. But she explained that intelligence is the ability to know

things and to figure things out; it is not a marker for development

or maturity.

Pope performed a comprehensive mental health evaluation.

With regard to Thieszen’s prenatal history, Pope had concern

that his natural mother may have used drugs and alcohol

while pregnant, which would impact Thieszen’s brain development

and behavior. She testified that Thieszen had no significant

medical history and no substance abuse history prior

to the murder.

Pope testified that Thieszen had many infractions during

his first few years in prison, but that there was a “precipitous

drop” in those infractions as he aged. She saw no evidence

that Thieszen engaged in aggression or violent sexual

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behavior while incarcerated. Pope testified that Thieszen did

not meet criteria for any mental health issue. She did not

believe Thieszen had an antisocial personality disorder, stating

that there was no evidence of any antisocial behavior in

the past 30 years. Pope testified that Thieszen had earned

his diploma through the GED program, had taken additional

coursework, and had been helping other inmates with their academic

pursuits. Although there was evidence that Thieszen had

engaged in substance abuse while in prison, his last infraction

for it was in 2000. Pope testified that Thieszen had over 200

misconduct reports, but that many were for minor violations,

such as tattooing activities or having items not permitted in his

cell. Records showed that as of January 18, 2017, Thieszen had

only four misconduct reports in the previous 5 years. Of those

reports, the most serious offense was possessing or receiving

unauthorized articles, for which Thieszen received 7 days of

room restriction.

Pope testified that Thieszen had formed several significant

relationships that he had kept for several years. This demonstrated

his ability to form a support network and to cultivate

relationships that would help sustain him in the community.

And Pope testified that it was remarkable Thieszen had such

ability, because he had difficulty forming attachments early

in development, and that his ability to form such relationships

now is an indication of his emotional maturity. Pope testified

that Thieszen expressed remorse for the crime.

Dr. Kirk Newring performed a psychological evaluation

of Thieszen. On a diagnostic tool to assess violence risk and

psychopathy, Thieszen scored a 12, which was higher than the

community average of 6, but lower than the typical inmate

score of 22. Newring testified that individuals with scores

below 20 typically are not considered psychopathic. Newring

administered a personality inventory, which did not reveal any

major mental health problems. A tool to measure intelligence

showed that Thieszen had an average to above-average IQ.

Based on a violence risk assessment, Newring placed Thieszen

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at a low risk for future acts of violence. A violence risk assessment

tool showed that Thieszen “had some protective factors

present, which is predictive of a favorable response to community

transition.” Those factors were intelligence, empathy,

coping skills, and self-control.

Newring’s diagnostic impressions were adjustment disorder

with anxiety and antisocial personality disorder. Newring

explained that Thieszen met the criteria for a diagnosis of antisocial

personality disorder but cautioned that Thieszen had not

shown any of that criteria in the last decade.

Newring did not administer any sex offender assessment

tools because Thieszen, from the age of 18, had no sexrelated

misconduct reports or charges. According to Newring,

Thieszen reported engaging in physical intimacies with female

staff members over the course of his incarceration. Newring

testified that those relationships would be potentially unhealthy

if they were still occurring, but that Thieszen described them

as “historical.”

In 2014, Newring administered a self-report measure to

assess the likelihood of substance abuse dependence. Based on

the testing, Newring had concerns that Thieszen would meet

criteria for cannabis use disorder.

Newring testified that Thieszen expressed remorse, regret,

and sorrow for his crime. According to Newring, Thieszen

“was likely in a very emotionally aroused situation and not

able to do rational, cognitive thinking that we would expect to

see in a cold logic situation.” Newring explained that an emotionally

aroused 14-year-old is different from a coldly logical

14-year-old and that a 14-year-old is much different from an

18-year-old. Newring asked Thieszen what, if anything, would

he change, and Thieszen answered that he would have told the

judge he did not want to be adopted by Edwin and Joyce.

A corrections officer at the prison who sees Thieszen on

nearly a daily basis testified that Thieszen was “[p]robably” a

good inmate. According to the officer, Thieszen did not cause

trouble and was respectful to corrections officers and other

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inmates. The officer further testified that Thieszen “just always

does everything he’s supposed to do” and that “[i]f you tell him

to do something, he does it.” According to the officer, Thieszen

knits, crochets, exercises, and paints. He testified that Thieszen

has many visitors. Five individuals wrote letters in strong support

of Thieszen. A few of those individuals attached pictures

of Thieszen’s artwork and craftwork.

(c) Resentencing

At the time of resentencing, Thieszen was 44 years old and

had been incarcerated since 1987. Before imposing a sentence,

the court addressed the factors set forth in Neb. Rev. Stat.

§ 28-105.02(2) (Reissue 2016). The court sentenced Thieszen

to 70 years’ to life imprisonment for first degree murder, to be

served consecutively to the sentence he was currently serving

of 80 to 240 months’ imprisonment for the firearm conviction.

Thieszen filed a timely appeal.

III. ASSIGNMENTS OF ERROR

Thieszen assigns, reordered, that the district court abused its

discretion in (1) failing to strike certain letters from the presentence

report, (2) allowing improper victim impact testimony

at the sentencing hearing, (3) imposing an excessive sentence,

(4) imposing a de facto sentence of life imprisonment without

parole in the absence of a finding of irreparable corruption, and

(5) imposing a disproportionate sentence upon him.

IV. STANDARD OF REVIEW

[1,2] An appellate court will not disturb a sentence imposed

within the statutory limits absent an abuse of discretion by the

trial court.7 A judicial abuse of discretion exists when the reasons

or rulings of a trial judge are clearly untenable, unfairly

depriving a litigant of a substantial right and denying just

results in matters submitted for disposition.8

7 State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018).

8 Id.

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V. ANALYSIS

1. Letters in Presentenc e Report

During the resentencing hearing, Thieszen’s counsel asked

that a number of letters in the presentence report be stricken.

He did not believe it was appropriate for the court to receive

letters from anonymous sources, and the court responded that

it would not consider anonymous letters. Thieszen’s counsel

also requested that the court not consider specific information

in letters that was baseless or inflammatory. The court

stated that it would give such a letter “the weight and credibility

that it’s due and disregard any portions not supported

by the record.”

On appeal, Thieszen argues that the court abused its discretion

by overruling his objections to letters which were

submitted by anonymous sources, which contained baseless

information, or which were intended to intimidate the judge

and encourage the imposition of an inappropriate sentence. We

disagree for two main reasons.

First, to some extent, the court granted the relief Thieszen

requested. The court stated that it would not consider unsigned

letters. The presentence report shows that the court struck a

number of letters. With regard to letters to which Thieszen

objected but which the court did not strike, the court stated that

it would give each letter the weight and credibility it was due

and that it would disregard portions that were not supported by

the record.

[3] Second, a sentencing court has broad discretion as to the

source and type of evidence and information which may be

used in determining the kind and extent of the punishment to

be imposed, and evidence may be presented as to any matter

that the court deems relevant to the sentence.9 We cannot say

that the court abused its broad discretion in declining to strike

all of the letters to which Thieszen objected.

9 State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).

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2. Victim Impact Testimony

The State informed the court that one of Thieszen’s sisters

wished to read a letter to the court under Neb. Rev. Stat.

§ 81-1848 (Cum. Supp. 2016). Thieszen’s counsel objected on

the basis that the sister is not a “victim” under the statute. But

the court stated that it would “give her an opportunity to read

her letter as an immediate family member.”

A statute sets forth rights for victims of crimes.10 Such a

victim has the right to submit a written impact statement at sentencing

or to read his or her impact statement at sentencing.11

But the statute gives such rights to “victims” as defined by

Neb. Rev. Stat. § 29-119 (Reissue 2016). Under § 29-119(2)(b),

a victim in the case of a homicide is “the nearest surviving

relative under the law as provided by section 30-2303 but does

not include the alleged perpetrator of the homicide.”

Thieszen contends that the court abused its discretion

in allowing improper victim impact testimony. Because

Thieszen’s parents are alive, Thieszen contends that they, but

not his sister, had the right to read their impact statements

at sentencing.

We rejected a similar challenge in State v. Galindo.12 In that

case, the defendant objected to victim impact statements on

the ground that not all of the family representatives qualified

as a “nearest surviving relative” under § 29-119. The sentencing

court overruled the objection, and we found no error. We

stated: “The definition of ‘victim’ upon which [the defendant]

relies merely provides for a baseline right, under the

[Nebraska Crime Victim’s Reparations Act], to give a victim

impact statement. The [act] does not seek to limit the sentencing

court’s traditional discretion to consider evidence from

a variety of sources.”13 Because we continue to believe this

10 See § 81-1848.

11 See § 81-1848(1)(d)(vii).

12 State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).

13 Id. at 670, 774 N.W.2d at 245.

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reasoning is sound, we decline Thieszen’s invitation to overrule

that aspect of Galindo.

The court did not abuse its discretion in allowing an oral

statement from Thieszen’s sister. The State advised the court

that the victims as defined in § 29-119—i.e., Edwin and

Joyce—“are elderly, they live out of state and for various reasons

don’t want to participate in the process.” It was not untenable

for the court to allow the victims’ daughter to be heard

instead. This assignment of error lacks merit.

3. Excessiveness of Sentenc e

Thieszen’s primary complaint on appeal is that his sentence

is excessive for various reasons. The court imposed a sentence

of 70 years’ to life imprisonment. The sentence is within

the statutory limits of 40 years’ to life imprisonment.14 But

Thieszen contends that the court abused its discretion in imposing

the sentence.

Thieszen begins by comparing his sentence to that imposed

in State v. Jackson.15 In that case, the victim died of multiple

gunshot wounds. The State filed identical informations against

the defendant and two others, charging each with first degree

murder and use of a deadly weapon during the commission of

a felony. At the time of the murder, the defendant was nearly

18 years old. A jury found the defendant guilty of murder but

not guilty of the weapon charge, and the court imposed a sentence

of life imprisonment. Because the defendant was under

18 years old at the time of the murder, he was later resentenced

to 60 to 80 years’ imprisonment. Thieszen points out

that he was younger than the defendant in Jackson, but that the

defendant

in Jackson received a lesser sentence.

[4] The lesser sentence imposed in Jackson does not persuade

us that Thieszen’s sentence constitutes an abuse of discretion.

Significantly, there were questions about the defendant’s

14 See § 28-105.02(1).

15 State v. Jackson, 297 Neb. 22, 899 N.W.2d 215 (2017).

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level of participation in Jackson. Here, there is no dispute that

Thieszen murdered Sacha. But more importantly, we do not

“‘color match’” sentences.16 It would be virtually impossible

to find two murder cases which are the same in all respects.17

The appropriateness of a sentence is necessarily a subjective

judgment and includes the sentencing judge’s observation of

the defendant’s demeanor and attitude and all the facts and circumstances

surrounding the defendant’s life.18 The fact that a

different offender with a different background received a lesser

sentence for a crime committed under different circumstances

does not mean that Thieszen’s sentence was excessive.

[5-7] Where a sentence imposed within the statutory limits

is alleged on appeal to be excessive, the appellate court must

determine whether the sentencing court abused its discretion

in considering and applying the relevant factors as well as any

applicable legal principles in determining the sentence to be

imposed.19 In determining a sentence to be imposed, relevant

factors customarily considered and applied are 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 amount of

violence involved in the commission of the crime.20 Because

Thieszen was under the age of 18 when he committed a

Class IA felony, § 28-105.02 dictates that the sentencing judge

must also consider mitigating factors, such as the defendant’s

(1) age at the time of the offense, (2) impetuosity,

(3) family

and community environment, and (4) ability to appreciate risks

and consequences of the conduct, as well as (5) the outcome

16 See State v. Ellis, 281 Neb. 571, 613, 799 N.W.2d 267, 302 (2011).

17 Id.

18 State v. Castaneda, 295 Neb. 547, 889 N.W.2d 87 (2017), cert. denied ___

U.S. ___, 138 S. Ct. 83, 199 L. Ed. 2d 54.

19 State v. Russell, supra note 7.

20 Id.

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of a comprehensive mental health evaluation of the defendant

conducted by an adolescent mental health professional

licensed

in Nebraska.21

The district court considered the pertinent sentencing factors.

It recognized that Thieszen was 14 years old at the time

of the offense and that at the time of resentencing, he was

divorced and had employment through “prison industries.” In

considering factors under § 28-105.02(2), the court acknowledged

that evaluations showed Thieszen was impetuous and

immature at the time of the offense. However, the court noted

that Thieszen purchased shells prior to the crime and that

because his gun had been taken away from him, there “was no

valid reason for [him] to purchase or possess shells except to

carry out previous threats to [his] family.” The court observed

that Thieszen’s natural mother was abusive and that he was

raised in an abusive environment until age 4. The court stated

that Edwin and Joyce raised Thieszen in a structured environment,

that they disciplined Thieszen to correct his behavior, but

that Thieszen did not modify his behavior after being caught

doing something wrong. The court noted that Thieszen had

above-average intellectual capacity. It recognized that Thieszen

had never been hospitalized for any mental health reason and

that Newring indicated Thieszen was well adjusted. We cannot

say that the court abused its discretion in its assessment of

the factors.

We are cognizant of factors militating against Thieszen’s

culpability for the crime. According to Pope, Thieszen’s traumatic

early childhood likely influenced his emotional and

cognitive development. There was evidence that Thieszen was

struggling mentally and emotionally prior to the murder and

that the only treatment provided was occasional therapy sessions.

According to Pope, “these factors would have interfered

with [Thieszen’s] ability to make rational decisions, appropriately

consider risks and consequences, and to regulate his

21 See id.

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behavior and impulses above and beyond the limitations that

are associated with adolescence.” Pope observed that over

time, Thieszen had taken on the roles of teacher and advisor

to other inmates and to the social network he had formed

outside of prison. These factors support the imposition of a

minimum sentence that is less than life imprisonment. The

court, by setting the minimum sentence at 70 years, imposed

such a sentence.

Thieszen also claims that his sentence amounted to a de

facto life sentence and that such a sentence was disproportionate

to the offense. According to Thieszen, his sentence of 70

years’ to life imprisonment means he will not be parole eligible

until age 53 and, if paroled, he will be on parole for the rest of

his life. But the sentence provides Thieszen with a “meaningful

and realistic opportunity to obtain release.”22 We have rejected

similar claims that a lengthy term-of-years sentence was a de

facto sentence of life imprisonment,23 and we see no reason to

revisit that conclusion here.

We conclude that the district court did not abuse its discretion

in overruling Thieszen’s objections to letters in the presentence

report, in allowing Thieszen’s sister to read her victim

impact statement at the sentencing hearing, or in imposing

the sentence. We therefore affirm Thieszen’s murder sentence

of 70 years’ to life imprisonment.



Affirmed