
    State of Nebraska, appellee, v. Benjamin David Ens, appellant.
    229 N. W. 2d 208
    Filed May 22, 1975.
    No. 39838.
    T. Clement Gaughan and Richard L. Goos, for appellant.
    Paul L. Douglas, Attorney General, and Marilyn B. Hutchinson, for appellee.
    Heard before White, C. J., Spencer, Boslaugh, McCown, Newton, Clinton, and Brodkey, JJ.
   Spencer, J.

Defendant appeals from a conviction on a plea of nolo contendere to an amended information of assault with intent to rape. Defendant was sentenced to 2 years in the Nebraska Penal and Correctional Complex. He here contends the sentence is excessive and the trial court erred in not finding him a proper subject for probation. We affirm.

Defendant was originally charged with the felony offense of incest. On September 20, 1974, pursuant to a plea bargain, he was arraigned on an amended information charging assault with intent to commit rape. His plea of nolo contendere was accepted by the court. The penalty for this offense is imprisonment in the Nebraska Penal and Correctional Complex for not more than 15 nor less than 2 years. Defendant was given the minimum sentence of 2 years.

Did the trial court err in not placing defendant on probation? Defendant is 38 years of age, a high school graduate, twice divorced, and the father of four daughters. He was originally charged with incest with his oldest daughter who was 15. As a result of a plea bargain, he was permitted to plead to this lesser offense on which he received the minimum penalty. In imposing sentence and denying probation in a criminal case, the judgment of the District Court will not be disturbed on appeal unless the record shows an abuse of discretion. State v. Heckathorn (1973), 190 Neb. 418, 208 N. W. 2d 689. Our review of the record and the presentence report sustains the conclusion that the trial court did not abuse its discretion.

The judgment is affirmed.

Affirmed.  