Here, the Nebraska Court of Appeals determines that a no contest plea was properly taken and a sentence imposed was not excessive. However, the state finds plain error when the district court ordered licence revocation for motor vehicle homicide.
State v. Andersen, 16 Neb. App. 651 (2008)
Court of Appeals Headnotes
Pleas:
1. Appeal and Error. A trial court is given discretion as to whether to accept a guilty plea; an appellate court will overturn that decision only where there is an abuse of discretion.
Sentences:
1. When imposing a sentence, a sentencing judge should consider 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. ••• In considering a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically applied set of factors. ••• 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 facts and circumstances surrounding the crime and the defendant’s life.
2. Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. ••• The standard of review in regard to sentencing is whether the sentence was within the statutory limits and whether the sentencing court abused its discretion.
Judgments:
1. Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
Appeal and Error.
1. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
Pleas.
1. A plea of no contest is equivalent to a plea of guilty. ••• To support a finding that a plea of guilty has been entered freely, intelligently, voluntarily, and understandingly, a court must inform the defendant concerning (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and (5) the privilege against self-incrimination. The record must also establish a factual basis for the plea and that the defendant knew the range of penalties for the crime charged.
Homicide:
1. Motor Vehicles: Licenses and Permits: Revocation. A conviction based on Neb. Rev. Stat. § 28-306(3)(a) (Cum. Supp. 2004), motor vehicle homicide by reckless/willful reckless driving, does not give the sentencing court any authority to order a license revocation.
Date Filed and Case No.: April 29, 2008. No. A-07-547.
Court Appealed From: The District Court for Douglas County: Joseph S. Troia, Judge.
Attorneys for the Appeal: Andrew J. Wilson and Kylie A. Wolf for Randy L. Andersen, appellant. Jon Bruning, and Stacy M. Foust for State of Nebraska, appellee.
Judges: Sievers, Carlson, and Moore, Judges.
Authored By: Carlson, Judge.
Summary: Based on a plea bargain, Randy L. Andersen pled no contest to motor vehicle homicide by reckless/willful reckless driving, a Class IIIA felony, on February 23, 2007. As a part of the plea agreement, the State dismissed count II, a charge of assault in the second degree, and agreed not to file 10 violations of a protection order, second offense. After the plea hearing, the court adjudged Andersen guilty of motor vehicle homicide by reckless/willful reckless driving and sentenced Andersen to 5 to 5 years’ imprisonment and a license revocation of 15 years. Andersen appeals.
Was Andersen’s plea of no contest entered freely, intelligently, voluntarily, and understandingly? Andersen argued that it was not. The thrust of Andersen’s argument is that in his mind, the offense should have been a misdemeanor instead of a felony and that he should have gotten some type of a preagreement on his sentence. The Nebraska Court of Appeals said that the record is not supportive of Andersen’s argument. The opinion gave excerpts from the record which highlighted some of Andersen’s complaints but showed that the plea herein was made freely, intelligently, voluntarily, and understandingly. The Court agreed with the summation of the State in its brief that Andersen’s arguments were founded upon comments made by him which were taken out of the context of the entire plea hearing. “The fact that Andersen did not agree with the evidence, whether he should be charged with a misdemeanor or felony, and what his final sentence should be does not change that his plea was made freely, intelligently, voluntarily, and understandingly” they wrote. The district court explained to him that he would be pleading no contest to a felony and that his sentence would be within the discretion of the court despite the recommendations of counsel.
Was Andersen’s sentence excessive? The district court sentenced Andersen to 5 to 5 years’ imprisonment based on his plea to count I, motor vehicle homicide by reckless/willful reckless driving, a Class IIIA felony. Count I was punishable by up to 5 years’ imprisonment, a $10,000 fine, or any combination of the two. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2006). The Court found it clear that the sentence was within the statutory limitations.
Andersen argued that although he has had a troubled past, he has made efforts to take control of his admitted drinking problem. In response, the State pointed to Andersen’s extensive criminal history (six pages in the presentence investigation report). Andersen has been convicted of multiple counts of driving during suspension, driving under the influence, and possession of less than 1 ounce of marijuana, among many other convictions. He has a previous felony conviction for felony criminal mischief (he was sentenced to 30 to 60 months of imprisonment.) Andersen also benefitted from a plea bargain in which the prosecutor dismissed and agreed not to file 11 felony charges. The Court found no support for the argument that the court abused its discretion in Andersen’s sentence of imprisonment.
However, the Court found plain error in the part of Andersen’s sentence, where the court suspended Andersen’s driver’s license for a period of 15 years. The State has conceded that the district court erred in imposing any time period of license revocation for Andersen under the statute to which he pled and was found guilty. Under the present state of Nebraska law, a conviction of motor vehicle homicide by reckless/willful reckless driving, does not give the sentencing court any authority to order a license revocation. As a result, the Court found plain error and vacated that portion of Andersen’s sentence that ordered Andersen not to operate a motor vehicle for a period of 15 years.
Conclusion: The Nebraska Court of Appeals therefore affirmed the district court’s judgment in all respects, except that they modified the sentencing order in regard to the license revocation. AFFIRMED AS MODIFIED.
Here, the Nebraska Court of Appeals determines that a no contest plea was properly taken and a sentence imposed was not excessive. However, the state finds plain error when the district court ordered licence revocation for motor vehicle homicide.
State v. Andersen, 16 Neb. App. 651 (2008)
Court of Appeals Headnotes
Pleas:
1. Appeal and Error. A trial court is given discretion as to whether to accept a guilty plea; an appellate court will overturn that decision only where there is an abuse of discretion.
Sentences:
1. When imposing a sentence, a sentencing judge should consider 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. ••• In considering a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically applied set of factors. ••• 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 facts and circumstances surrounding the crime and the defendant’s life.
2. Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. ••• The standard of review in regard to sentencing is whether the sentence was within the statutory limits and whether the sentencing court abused its discretion.
Judgments:
1. Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
Appeal and Error.
1. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
Pleas.
1. A plea of no contest is equivalent to a plea of guilty. ••• To support a finding that a plea of guilty has been entered freely, intelligently, voluntarily, and understandingly, a court must inform the defendant concerning (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and (5) the privilege against self-incrimination. The record must also establish a factual basis for the plea and that the defendant knew the range of penalties for the crime charged.
Homicide:
1. Motor Vehicles: Licenses and Permits: Revocation. A conviction based on Neb. Rev. Stat. § 28-306(3)(a) (Cum. Supp. 2004), motor vehicle homicide by reckless/willful reckless driving, does not give the sentencing court any authority to order a license revocation.
Date Filed and Case No.: April 29, 2008. No. A-07-547.
Court Appealed From: The District Court for Douglas County: Joseph S. Troia, Judge.
Attorneys for the Appeal: Andrew J. Wilson and Kylie A. Wolf for Randy L. Andersen, appellant. Jon Bruning, and Stacy M. Foust for State of Nebraska, appellee.
Judges: Sievers, Carlson, and Moore, Judges.
Authored By: Carlson, Judge.
Summary: Based on a plea bargain, Randy L. Andersen pled no contest to motor vehicle homicide by reckless/willful reckless driving, a Class IIIA felony, on February 23, 2007. As a part of the plea agreement, the State dismissed count II, a charge of assault in the second degree, and agreed not to file 10 violations of a protection order, second offense. After the plea hearing, the court adjudged Andersen guilty of motor vehicle homicide by reckless/willful reckless driving and sentenced Andersen to 5 to 5 years’ imprisonment and a license revocation of 15 years. Andersen appeals.
Was Andersen’s plea of no contest entered freely, intelligently, voluntarily, and understandingly? Andersen argued that it was not. The thrust of Andersen’s argument is that in his mind, the offense should have been a misdemeanor instead of a felony and that he should have gotten some type of a preagreement on his sentence. The Nebraska Court of Appeals said that the record is not supportive of Andersen’s argument. The opinion gave excerpts from the record which highlighted some of Andersen’s complaints but showed that the plea herein was made freely, intelligently, voluntarily, and understandingly. The Court agreed with the summation of the State in its brief that Andersen’s arguments were founded upon comments made by him which were taken out of the context of the entire plea hearing. “The fact that Andersen did not agree with the evidence, whether he should be charged with a misdemeanor or felony, and what his final sentence should be does not change that his plea was made freely, intelligently, voluntarily, and understandingly” they wrote. The district court explained to him that he would be pleading no contest to a felony and that his sentence would be within the discretion of the court despite the recommendations of counsel.
Was Andersen’s sentence excessive? The district court sentenced Andersen to 5 to 5 years’ imprisonment based on his plea to count I, motor vehicle homicide by reckless/willful reckless driving, a Class IIIA felony. Count I was punishable by up to 5 years’ imprisonment, a $10,000 fine, or any combination of the two. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2006). The Court found it clear that the sentence was within the statutory limitations.
Andersen argued that although he has had a troubled past, he has made efforts to take control of his admitted drinking problem. In response, the State pointed to Andersen’s extensive criminal history (six pages in the presentence investigation report). Andersen has been convicted of multiple counts of driving during suspension, driving under the influence, and possession of less than 1 ounce of marijuana, among many other convictions. He has a previous felony conviction for felony criminal mischief (he was sentenced to 30 to 60 months of imprisonment.) Andersen also benefitted from a plea bargain in which the prosecutor dismissed and agreed not to file 11 felony charges. The Court found no support for the argument that the court abused its discretion in Andersen’s sentence of imprisonment.
However, the Court found plain error in the part of Andersen’s sentence, where the court suspended Andersen’s driver’s license for a period of 15 years. The State has conceded that the district court erred in imposing any time period of license revocation for Andersen under the statute to which he pled and was found guilty. Under the present state of Nebraska law, a conviction of motor vehicle homicide by reckless/willful reckless driving, does not give the sentencing court any authority to order a license revocation. As a result, the Court found plain error and vacated that portion of Andersen’s sentence that ordered Andersen not to operate a motor vehicle for a period of 15 years.
Conclusion: The Nebraska Court of Appeals therefore affirmed the district court’s judgment in all respects, except that they modified the sentencing order in regard to the license revocation. AFFIRMED AS MODIFIED.
Here, the Nebraska Court of Appeals determines that a no contest plea was properly taken and a sentence imposed was not excessive. However, the state finds plain error when the district court ordered licence revocation for motor vehicle homicide.
State v. Andersen, 16 Neb. App. 651 (2008)
Court of Appeals Headnotes
Pleas:
1. Appeal and Error. A trial court is given discretion as to whether to accept a guilty plea; an appellate court will overturn that decision only where there is an abuse of discretion.
Sentences:
1. When imposing a sentence, a sentencing judge should consider 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. ••• In considering a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically applied set of factors. ••• 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 facts and circumstances surrounding the crime and the defendant’s life.
2. Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. ••• The standard of review in regard to sentencing is whether the sentence was within the statutory limits and whether the sentencing court abused its discretion.
Judgments:
1. Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
Appeal and Error.
1. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
Pleas.
1. A plea of no contest is equivalent to a plea of guilty. ••• To support a finding that a plea of guilty has been entered freely, intelligently, voluntarily, and understandingly, a court must inform the defendant concerning (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and (5) the privilege against self-incrimination. The record must also establish a factual basis for the plea and that the defendant knew the range of penalties for the crime charged.
Homicide:
1. Motor Vehicles: Licenses and Permits: Revocation. A conviction based on Neb. Rev. Stat. § 28-306(3)(a) (Cum. Supp. 2004), motor vehicle homicide by reckless/willful reckless driving, does not give the sentencing court any authority to order a license revocation.
Date Filed and Case No.: April 29, 2008. No. A-07-547.
Court Appealed From: The District Court for Douglas County: Joseph S. Troia, Judge.
Attorneys for the Appeal: Andrew J. Wilson and Kylie A. Wolf for Randy L. Andersen, appellant. Jon Bruning, and Stacy M. Foust for State of Nebraska, appellee.
Judges: Sievers, Carlson, and Moore, Judges.
Authored By: Carlson, Judge.
Summary: Based on a plea bargain, Randy L. Andersen pled no contest to motor vehicle homicide by reckless/willful reckless driving, a Class IIIA felony, on February 23, 2007. As a part of the plea agreement, the State dismissed count II, a charge of assault in the second degree, and agreed not to file 10 violations of a protection order, second offense. After the plea hearing, the court adjudged Andersen guilty of motor vehicle homicide by reckless/willful reckless driving and sentenced Andersen to 5 to 5 years’ imprisonment and a license revocation of 15 years. Andersen appeals.
Was Andersen’s plea of no contest entered freely, intelligently, voluntarily, and understandingly? Andersen argued that it was not. The thrust of Andersen’s argument is that in his mind, the offense should have been a misdemeanor instead of a felony and that he should have gotten some type of a preagreement on his sentence. The Nebraska Court of Appeals said that the record is not supportive of Andersen’s argument. The opinion gave excerpts from the record which highlighted some of Andersen’s complaints but showed that the plea herein was made freely, intelligently, voluntarily, and understandingly. The Court agreed with the summation of the State in its brief that Andersen’s arguments were founded upon comments made by him which were taken out of the context of the entire plea hearing. “The fact that Andersen did not agree with the evidence, whether he should be charged with a misdemeanor or felony, and what his final sentence should be does not change that his plea was made freely, intelligently, voluntarily, and understandingly” they wrote. The district court explained to him that he would be pleading no contest to a felony and that his sentence would be within the discretion of the court despite the recommendations of counsel.
Was Andersen’s sentence excessive? The district court sentenced Andersen to 5 to 5 years’ imprisonment based on his plea to count I, motor vehicle homicide by reckless/willful reckless driving, a Class IIIA felony. Count I was punishable by up to 5 years’ imprisonment, a $10,000 fine, or any combination of the two. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2006). The Court found it clear that the sentence was within the statutory limitations.
Andersen argued that although he has had a troubled past, he has made efforts to take control of his admitted drinking problem. In response, the State pointed to Andersen’s extensive criminal history (six pages in the presentence investigation report). Andersen has been convicted of multiple counts of driving during suspension, driving under the influence, and possession of less than 1 ounce of marijuana, among many other convictions. He has a previous felony conviction for felony criminal mischief (he was sentenced to 30 to 60 months of imprisonment.) Andersen also benefitted from a plea bargain in which the prosecutor dismissed and agreed not to file 11 felony charges. The Court found no support for the argument that the court abused its discretion in Andersen’s sentence of imprisonment.
However, the Court found plain error in the part of Andersen’s sentence, where the court suspended Andersen’s driver’s license for a period of 15 years. The State has conceded that the district court erred in imposing any time period of license revocation for Andersen under the statute to which he pled and was found guilty. Under the present state of Nebraska law, a conviction of motor vehicle homicide by reckless/willful reckless driving, does not give the sentencing court any authority to order a license revocation. As a result, the Court found plain error and vacated that portion of Andersen’s sentence that ordered Andersen not to operate a motor vehicle for a period of 15 years.
Conclusion: The Nebraska Court of Appeals therefore affirmed the district court’s judgment in all respects, except that they modified the sentencing order in regard to the license revocation. AFFIRMED AS MODIFIED.
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