A Fremont woman was sentenced in Dodge County District Court on Monday to three to four years in prison for illegally selling morphine.
Kristen E. Utterback, 37, had pleaded no contest to delivery of a controlled substance in October. The charge amounted to a Class IIA felony, which, under Nebraska law, can yield a sentence between 0 and 20 years of imprisonment.
District Court Judge Geoffrey Hall’s decision to hand down a prison sentence was partly informed by Utterback’s failure to appear at an appointment with the local probation office to be interviewed for a pre-sentence investigation report, which would have determined her eligibility for probation.
The Dodge County Attorney’s office, which had been seeking a term of three to five years in prison, also alleged that she failed to follow up to reschedule the appointment.
But Utterback and her defense attorney, Lisa Schutt, argued that she had only missed the appointment because she had the flu, and that attempts at follow up were hampered by “miscommunication.”
In a tear-filled testimony, Utterback apologized for missing the appointment saying that she did attempt to reach out to the office, but received no calls back. She also said there had been some misunderstanding about whether her case was being handled in Sarpy or Dodge County.
She asked Hall for probation so she could continue handling a pending juvenile case.
“I apologize sir, and I’d like a chance to do probation so that I can get my daughter back and keep moving forward,” she said.
According to the state, after she missed her appointment, Utterback did not respond to attempts from the probation office to contact her, including one instance where the office called the number she had listed and an unknown man answered the phone.
But Utterback says she called the probation office in the morning before her scheduled appointment time. She suggested that whoever may have called from probation could have dialed the wrong number. Schutt pointed out that it would have been odd for a man to answer the phone and also concurred that the number listed with the probation office was the same number she used to keep in contact with Utterback.
But Hall suggested that Utterback could have done more to make contact after she missed her appointment, including by going down to the office.
“I understand that you might have been sick one day, but that’s one day. Now here we are two months later and you still have a no-show,” Hall said. “I would have gotten in my car, walked or taken a bicycle and got to that probation office and said ‘hey I’m here.’”
Schutt, meanwhile, maintained that Utterback had been complying with all of the requirements that she needed to follow in the pending juvenile case, including attending an intensive outpatient treatment program and other meetings geared toward treatment.
Ahead of Monday’s hearing, Schutt submitted to the court a substance abuse evaluation from Capstone Behavioral Health, a written letter from an advocate and sponsor on behalf of Utterback and a copy of an AA attendance card.
“She’s not out there doing bad things,” said Schutt, who asked Hall to consider a sentence of probation or an opportunity to complete a new pre-sentence investigation.
Hall noted that the substance abuse evaluation submitted to the court was from December 2017, but the treatments were not pursued until this past November, raising questions about whether her efforts were continued throughout the entire year.
“Where’s the information for the whole year?” Hall said.
Schutt said Utterback had been incarcerated twice during the year, once for a case that was ultimately dismissed, and also dealt with grief after her significant other died.
But Hall ultimately said that, given that the charge was a serious Class IIA felony, Utterback’s efforts had not gone far enough.
“For whatever reason, you have not taken this matter seriously. This has been on file for some time. I’ve got an old evaluation, with very little action after that,” he said. “Based on all this, I’m left with little choice but to send you to the penitentiary.”
According to a police affidavit, Utterback was arrested for two separate occasions that occurred in August 2017, when she delivered morphine and hydromorphone to an individual cooperating with the III Corps Drug Task Force. One of two charges of delivery was ultimately dropped.
In other district court news from Monday:
- John Shemat, 52, pleaded guilty to a Class IIA felony of possession with intent to deliver as part of a plea agreement. Per the agreement, Shemat was also sentenced to three to five years in prison and a charge of habitual criminal, which would have extended his sentence due to prior felony convictions, was dropped. Shemat was arrested after officers found 6.11 grams of methamphetamine in three separate bags inside his vehicle during a traffic stop.
- Brandon Neth, 43, pleaded guilty to a Class II felony of possession of a deadly weapon as a prohibited person. There is a joint agreement for two to three years in prison, but a pre-sentence investigation was ordered and sentencing was set for Feb. 19.
- Mark Sovereign, 50, pleaded guilty to possession of a deadly weapon as a prohibited person as a Class ID felony, as well as possession of a controlled substance, a Class IV felony. There is no agreement as to sentencing. A pre-sentence investigation was ordered and sentencing was set for Feb. 11.