State v. Alba

• Decision Date: 10 May 2005
• Docket Number: No. A-04-1125.,A-04-1125.
• Citation: 13 Neb. App. 519,697 N.W.2d 295
• Parties: STATE of Nebraska, appellee, v. Peter J. ALBA, appellant.
• Court: Nebraska Court of Appeals

697 N.W.2d 295

13 Neb. App. 519

STATE of Nebraska, appellee, v. Peter J. ALBA, appellant.

No. A-04-1125.

Court of Appeals of Nebraska.

May 10, 2005.

Casey J. Quinn, Omaha, for appellant.

Jon Bruning, Attorney General, and Susan J. Gustafson, for appellee.

INBODY, Chief Judge, and IRWIN and SIEVERS, Judges.

SIEVERS, Judge.

INTRODUCTION

Peter J. Alba appeals the sentencing order of the Douglas County District Court after his plea of nolo contendere to two counts of sexual assault of a child, first offense, for which he was sentenced to 5 to 10 years' imprisonment on count I and 10 to 15 years' imprisonment on count II, the sentences to run consecutively. The appeal centers on the fact that the State, defense counsel, and the judge treated the crimes in the plea bargain as Class II felonies when they in fact were lesser crimes, Class IV felonies. Alba asks that he be resentenced under the lesser penalties for Class IV felonies. The State argues that we should void the plea agreement, remand the cause, and essentially allow the prosecution to start over because the State did not get the benefit of its plea bargain. We hold that when there is a mistake of law in the plea agreement, the risk of such mistake falls on the State. Thus, the plea agreement must be upheld, and Alba is entitled to be resentenced according to the law applicable to Class IV felonies, which is the correct gradation of the crimes in the plea agreement.

FACTUAL AND PROCEDURAL BACKGROUND

On October 28, 2003, Alba was charged by information with two counts of second offense sexual assault of a child, Class IC felonies, pursuant to Neb.Rev.Stat. § 28-320.01(3) (Cum.Supp.1996). Count I alleged that "on or about the 1st day of January, 1997," Alba subjected B.A., "a person of less than fourteen years of age or younger, to sexual contact." Count II alleged that "on or about the 1st day of January, 1997," Alba subjected Z.A., "a person of less than fourteen years of age or younger, to sexual contact."

On August 5, 2004, pursuant to a plea agreement, the State amended the information to allege each count as a first offense, which the State and the judge said made each count a Class II felony. The amended information expressly categorizes the crimes as Class II felonies. At the plea hearing, the trial judge, without objection from defense counsel or the State, advised Alba about the crimes and their penalties as though the crimes were Class II felonies, telling Alba that the crimes each carried a maximum prison sentence of 50 years and a minimum prison sentence of 1 year. Alba entered a plea of nolo contendere and was advised by the judge that he was pleading no contest to two Class II felonies, each of which carried a sentence as described above. A factual basis was entered, Alba's pleas were accepted, and an order was entered on September 27, 2004, sentencing Alba to imprisonment for 5 to 10 years on count I and for 10 to 15 years on count II, the sentences to be served consecutively. Alba appeals the sentences to this court.

ASSIGNMENTS OF ERROR

Alba asserts that the trial court erred by imposing an excessive sentence on each count.

STANDARD OF REVIEW

Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion. State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.

ANALYSIS

Statutory Penalty in Effect at Time of Crime Controls.

Under § 28-320.01, first-offense sexual assault of a child at the time of the crime was a Class IV felony, but the statute was later amended to change first-offense sexual assault of a child to a Class IIIA felony. See 1997 Neb. Laws, L.B. 364 (operative date July 1, 1998). Alba contends that because the crimes set forth in the information were alleged to have occurred on or about January 1, 1997, the version of § 28-320.01 classifying first-offense sexual assault as a Class IV felony controls here.

We agree that the penalty provisions of § 28-320.01 in effect at the time of the alleged crimes set forth in the amended information, which provisions made first-offense sexual assault of a child a Class IV felony, are controlling, rather than the legislative amendment operative July 1, 1998, which made the crimes Class IIIA felonies. See State v. Gray, 259 Neb. 897, 612 N.W.2d 507 (2000) (law which creates or enhances penalties that did not exist when offense was committed is unenforceable ex post facto law).

Effect of Mistake in Plea Agreement.

Alba contends that his sentences are illegal because they are not authorized for the crimes to which he pled no contest as part of the plea agreement. Alba's sentences were the result of a mistake in the proceedings by which the original charges were reduced from second-to first-offense sexual assault of a child, but the amended charges were wrongfully treated as Class II felonies— and treated as such by the State, the trial judge, and defense counsel. While the punishment for a Class II felony is 1 to 50 years' imprisonment, no such sentence is authorized for a first-offense violation of § 28-320.01, which is what Alba pled to and was found guilty of. Thus, the sentences imposed were illegal because they were not authorized under § 28-320.01 and because they exceed the 5-year maximum sentence authorized at the time of Alba's crimes of first-offense sexual assault of a child. A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or less than the permissible statutory penalty for the crime. U.S. v. Greatwalker, 285 F.3d 727 (8th Cir.2002). See, also, State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998) (sentence imposed was invalid in that maximum period of incarceration specified exceeded that which was authorized by statute), cert. denied 526 U.S. 1162, 119 S.Ct. 2056, 144 L.Ed.2d 222 (1999); State v. Hedglin, 192 Neb. 545, 222 N.W.2d 829 (1974) (minimum portion of sentence was void as being in excess of minimum authorized by statute). Accordingly, we must vacate Alba's sentences.

However, because the sentences were the result of a plea agreement, we must determine whether such agreement must also be vacated, as the State contends, or whether the remedy is to order resentencing of Alba for the correct gradation of the crimes to which he pled. We note that Alba does not complain of any due process violation from the obvious mistake made by his defense counsel, the State, and the trial judge in classifying the crime as a Class II felony instead of a Class IV felony. While the trial judge was clearly remiss in his duty to correctly advise Alba about the applicable penalties, Alba does not assign such as error. See State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986) (record must support finding that plea of guilty has been entered freely, voluntarily, intelligently, and understandingly, which includes ensuring that defendant understands range of penalties). Obviously, he could not have relied, to his prejudice, on an incorrect advisory stating a much more severe penalty than was lawful. Therefore, while the penalty advisory was plainly error, it was not prejudicial, and by asking to be resentenced under the correct statute, Alba has also waived such error.

In contrast, the State requests that we vacate the plea agreement in its entirety, because doing so would "return both parties to the status quo ante." Brief of appellee at 14. The State complains that it was prejudiced because when it entered into the agreement, "the statutory sentencing range applicable to a Class II felony was an essential element of the agreement between the parties." Id. at 15. The essence of the State's argument is that the State made the agreement because under it, Alba could still receive severe sentences, yet the victims and their families would be spared from testifying.

To support this argument, the State refers us to the sentencing hearing, during which the prosecutor commented:

[T]he reduction of the charge was done with no reflection on a reduction in sentence. It was done to prevent th[e] family from having to go through a trial.... [T]hat decision by the family was not done with a reduction in sentencing in mind. It was done solely to save the child and th[e] family from the ordeal of a trial, because we felt that even the reduced charge carried enough exposure... that the Court would have at its discretion enough time to—enough exposure to make the appropriate ruling.

Plea Agreements as Contracts:

Parties' Reasonable Expectations.

In State v. Howe, 2 Neb.App. 766, 778, 514 N.W.2d 356, 365 (1994), we stated:

"`A plea bargain is a contract, the terms of which necessarily must be interpreted in light of the parties' reasonable expectations. The resolution of each case depends upon the essence of the particular agreement and the Government's conduct relating to its obligations in that case.'" United States v. Fields, 766 F.2d 1161, 1168 (7th Cir.1985).

Consistent with the view of plea agreements as contracts, the Nebraska Supreme Court has said that in dealing with a prosecutor's breach of a plea agreement, when the breach has been properly preserved for review, the defendant may be entitled to withdrawal of the plea or to specific performance. See State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002). These remedies are obviously concepts from the law of contracts, but this case does not involve a prosecutor's breach of a plea agreement. Therefore, we turn to the parties' reasonable expectations in reaching their bargain, and the emphasis is properly on "reasonable." While the State's...