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Nebraska Supreme Court upholds convicition of former Chief Wilkinson

In a ruling published Friday, the Nebraska Supreme Court upheld the misdemeanor conviction and 30-day jail sentence for former Sidney Police Chief B.J. Wilkinson. In its ruling, the Supreme Court found that Wilkinson, charged with obstructing government operations, had no authority to take the actions he did.

The original charge stemmed from an incident when Wilkinson pulled a citation that had been issued to Sidney’s then-public services director John Henke, keeping it from being presented to the county attorney for prosecution.

Wilkinson was later charged with obstruction and pleaded no contest in county court last July. After being ordered to serve 30 days in jail, Wilkinson appealed the conviction and sentence. In September, a district court judge upheld the ruling. Wilkinson appealed to the Nebraska Court of Appeals in October.

In February, the Nebraska Supreme Court ordered the case moved from the Court of Appeals to the Supreme Court docket. Arguments were heard March 31, by Chief Justice Michael Heavican, Justice John Wright, Justice Lindsey Miller-Lerman, Justice William Connolly, Justice William Cassel, and Justice Max Kelch.

Before the Supreme Court, Wilkinson’s attorney, Thomas Sonntag, argued the district court erred by (1) affirming the county court’s finding that there was a sufficient factual basis to support the conviction, (2) finding that the amended complaint was adequate, and (3) finding that the sentence imposed was not excessive.

In its analysis of the factual basis for plea, the Supreme Court ruling said in the first assignment of error, it was argued that the district court erred by accepting Wilkinson’s no contest plea, because it was not supported by a sufficient factual basis. The argument was that as chief, Wilkinson had the power of “immediate superintendence of the police” conferred to a chief of police by Nebraska Revised Statute 16-323 (Reissue 2012). Wilkinson’s argument was that the statute authorized him to choose, for political reasons, not forward citations to the county attorney’s office. The Court’s ruling stated “we do not find that a chief of police has such authority under the facts of this case.”

The Court further found there were ample facts to support the conviction and in its opinion stated “we find Wilkinson’s actions were not justified by his position as chief of police. The factual basis establishes that Wilkinson breached his official duty (under statute).”

Another portion of Wilkinson’s argument was that no obstruction or impairment to government function or administration of law was committed because no public servant was engaged in a governmental function concerning the citation. The claim was that because the officer’s investigation had been completed and that the county attorney had not yet obtained the citation for prosecution, no obstruction was made because the citation remained in his control.

The Court disagreed, because state law requires delivery of a citation to the county attorney “as soon as practicable (feasible).” The ruling said that by interfering with the delivery of the citation, Wilkinson impaired the county attorney’s prosecutorial functions.

In addressing the second challenge, adequacy of the amended complaint, the Supreme Court found the challenge was without merit.

Challenging the sentence, Wilkinson argued that the district court did not give sufficient weight to mitigating factors. Wilkinson argued he was entitled to a reduced sentence because of his relationship with his daughter, his military service record, his history of public service in law enforcement, and benevolent motive for obstructing government operations.

The Supreme Court disagreed, its ruling stating: “the county court did consider these facts. During the plea and sentencing proceeding, Wilkinson raised each of these facts before the county court. The county court then ruled from the bench and listed its reasons for imposing a 30-day sentence plus court costs.”

The county court ruling, outlined in the Supreme Court ruling, quoted the original judge’s words in part:

“The difficulty with a sentencing in this sort of case is there is absolutely no question about your lack of criminal history. Your service history is commendable.

“ . . . Which makes a sentence of probation for you to really be like no consequence at all. Because I’m convinced you’ll be a law-abiding citizen from here on out . . .

“ . . . And I think the imposition of a fine would be inappropriate and promote disrespect for the law.

“ . . . [G]iven your prior service history, lack of any prior criminal history, I think that a 30-day sentence is appropriate. But I think any other sentence, given your position of trust, would promote disrespect for the law.”

In its ruling on the sentence, the Supreme Court stated, “Under these circumstances, and considering that the statutory maximum sentence of 1 year’s imprisonment is well above the 30 days imposed, we find that the district court correctly held that the county court did not abuse its discretion. It properly considered factors relevant to sentencing and made its decision based upon sound reasoning.”

The Supreme Court’s final conclusion: “We affirm the decision of the district court, affirming Wilkinson’s conviction and sentence.”

Thus far, neither Wilkinson nor Sonntag have commented on the ruling.

 

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