Neb. court of appeals upholds sentence of probation for defendant's third serious drunk driving offense, and this time, the innocent victim in the crash suffered severe foot fractures; Def's convictions were in 2001 (twice) and 2004; his BAC readings were .203, .208, and .229 Omaha.com A judge was not excessively lenient when he relented and gave two years' probation to a third-offense drunken driver who had maimed a motorcyclist, the Nebraska Court of Appeals said. State v. Wichser (Not Designated for Permanent Publication)November 1, 2005. No. A-05-416. Matthew Wichser was charged with one count of driving under the influence causing serious bodily injury, a Class IIIA felony. After Wichser's no contest plea to the charge, the trial court sentenced him to probation for a period of 2 years. Pursuant to Neb. Rev. Stat. § 29-2320 (Cum. Supp. 2004), the State has appealed on the ground that the sentence was excessively lenient. The appellate court ruled this week that Douglas County District Judge J. Michael Coffey clearly agonized over his decision after Matthew Wichser, 26, begged the judge not to send him to prison in March. In an about-face rarely seen in a courtroom, Coffey initially declared that probation was inappropriate, noting that it was Wichser's third drunken-driving conviction and that he had injured Randy Konfrst of Omaha. A deputy walked behind Wichser, ratcheting open his handcuffs. Wichser then began to beg, promising the judge he had quit drinking and would follow probation "to the letter." Ultimately, Coffey relented, giving Wichser two years on probation, instead of the one- to two-year prison term the judge had planned to impose. Nebraska Attorney General Jon Bruning appealed the sentence, calling probation "totally unacceptable." Wichser's blood-alcohol content was .23, nearly three times the legal limit, when he crashed into Konfrst near 74th and Pacific Streets on Aug. 5, 2004. Konfrst suffered three fractures in his left leg, a shattered right foot and a broken nose and lost half of his left foot. Tuesday, Court of Appeals Judges Everett Inbody, Theodore Carlson and Frankie Moore said Coffey had the discretion to order probation if he saw fit. In an opinion not intended as a precedent, Carlson wrote that Wichser's actions constituted "a serious alcohol offense" that "would weigh in favor of jail time." But to get the sentence overturned, Carlson wrote, Bruning's office had to show that Coffey abused his discretion to order probation. Coffey did not, Carlson said. The court cited a probation officer's report that Wichser met the qualifications for probation. However, that probation officer did not recommend probation because it was Wichser's third drunken-driving conviction in four years. Such a sentence "would depreciate the seriousness of the offense," the probation officer wrote. The appeals court states the standard for reviewing a sentence that the State alleges is too lenient: (according to ) State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999), and State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001) wherein it was pointed out that in determining whether an abuse of discretion occurred, this court must consider both Neb. Rev. Stat. § 29-2322 (Reissue 1995) and Neb. Rev. Stat. § 29-2260 (Reissue 1995). The Appeals court may not conduct a denovo review ofthe sentence. "Our standard of review is not de novo. If it were, we might reach a different result, but, in this instance, we conclude that the trial court did not abuse its discretion and that, therefore, the trial court's sentence was not excessively lenient. We affirm." "Wichser did satisfactorily complete two previous alcohol probations - which is the good news," Carlson wrote. "The bad news is that he continued to reoffend." The court noted that Coffey didn't eliminate the possibility of jail time. Coffey told Wichser he would spend 180 days in jail at the end of his probation term, unless Coffey decides to waive it. Coffey also vowed that he would sentence Wichser to the maximum, five years in prison, if he violated any term of the probation. "It should be noted that Wichser's life, except for his drinking, which is a big exception, was lawful and productive overall," Carlson wrote. "There was no victim impact statement filed so the court was unable to . . . gain further insight from the victim's point of view." After the sentence, Konfrst said he was too busy trying to return to work and move on with his life. He has undergone painful rehabilitation to learn to walk with a specially equipped boot. He didn't attend Wichser's court hearings because, he said, he figured it wouldn't do any good. He had read about other drunken drivers getting probation for causing serious injuries or even deaths. "It's just the way the system is," he said. The Court in a bone to justice did revoke the defendant's drivers license, something the agonizing judge forgot to do.