State v. Clemens
| Decision Date | 27 July 2018 |
| Docket Number | No. S-17-872.,S-17-872. |
| Citation | 915 N.W.2d 550,300 Neb. 601 |
| Parties | STATE of Nebraska, appellee, v. Nathan W. CLEMENS, appellant. |
| Court | Nebraska Supreme Court |
Joseph D. Nigro, Lancaster County Public Defender, Todd Molvar, and Sarah L. Burghaus, Senior Certified Law Student, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.
Nathan W. Clemens appeals his plea-based conviction and sentence in the district court for Lancaster County for attempted violation of Nebraska’s Sex Offender Registration Act (SORA). He claims that the district court committed plain error when it accepted the factual basis for the plea and sentenced him. We affirm Clemens’ conviction and sentence.
In August 2016, Clemens was taken into custody by a Lancaster County sheriff’s deputy following a disturbance in a bar. As a result of conducting a background check on Clemens, the deputy determined that Clemens was registered as a sex offender in Colorado; that he was still required to be registered in Colorado; and that he had last registered in Colorado on January 14, 2016, with an Aurora, Colorado, address. Further investigation indicated that Clemens had been living and working in Nebraska since June 2016, but that he had never registered as a sex offender in Nebraska. The State charged Clemens with a violation of SORA under Neb. Rev. Stat. § 29-4011(1) (Reissue 2016) based on his failure to register within 3 working days after entering Nebraska, as required by Neb. Rev. Stat. §§ 29-4003(1)(a)(iv) and 29-4004(1) (Reissue 2016).
As part of a plea agreement, the State amended the charge to attempted violation of SORA, and on June 5, 2017, Clemens pled guilty to the amended charge. At the plea hearing, the State set forth a factual basis which included, inter alia, the following: that Clemens "was a registered sex offender in Colorado"; that "on February 18th of 1999, [he] was found to have committed the offense of sexual assault of a child" in Colorado; that "[a]s a result of his conviction, [he] was required to register as a sex offender" in Colorado; that a law enforcement officer in Colorado confirmed that Clemens "was still required to registered as a sex offender, and his last registration in Colorado was on January 14th, 2016, when he listed his address at that time as being in Aurora, Colorado"; that Clemens had posted on social media in June 2016 that he was leaving Colorado and "was going to Nebraska for a new start"; that his employer provided timecards showing that he "had been working in Nebraska since June 20th of 2016"; that Clemens had "acknowledge[d] that he knew he was required to register as a sex offender, but said he did not know the rules in Nebraska"; and that a "review of the Nebraska State Patrol Registry and the records of the Lancaster County Sheriff’s Office show that ... Clemens had never registered as a sex offender in Nebraska or in Lancaster County." After the State finished giving its factual basis, the court asked Clemens, "Sir, did you commit this offense?" and Clemens replied, "Yes, sir." After further colloquy, the court accepted Clemens’ plea and found him guilty of attempted violation of SORA.
On July 28, 2017, the court sentenced Clemens to imprisonment for 270 days and to postrelease supervision for 9 months. On August 15, Clemens filed a notice of appeal. At an appeal bond hearing held on August 16, the district court received into evidence two exhibits offered by Clemens: an August 4, 2017, letter from the Nebraska State Patrol stating that Clemens did not need to register under SORA and a copy of the decision of the U.S. Court of Appeals for the Eighth Circuit in A.W. by and through Doe v. State, 865 F.3d 1014 (8th Cir. 2017). Clemens stated that he was offering the exhibits "just for the purpose of setting the appeal bond."
In the August 4, 2017, letter, legal counsel for the Nebraska State Patrol advised Clemens that his "registration is being terminated due to a decision of the 8th Circuit Court of Appeals relating to out-of-state juvenile adjudications." The Eighth Circuit opinion to which the letter referred was A. W. by and through Doe, supra , filed on July 31, 2017. In that opinion, the Eighth Circuit interpreted SORA and, in particular § 29-4003(1)(a), which provides: "[SORA] applies to any person who on or after January 1, 1997: ... (iv) [e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States." In its opinion in A.W. by and through Doe , based on its interpretation of the term "sex offender," the Eighth Circuit concluded that § 29-4003(1)(a)(iv) of SORA did not apply to persons who move to Nebraska from another state and were required to register in that other state if the registration required in the other state was a result of a juvenile adjudication rather than a criminal conviction.
At the appeal bond hearing, Clemens stated that the letter from the Nebraska State Patrol and the Eighth Circuit decision were "why [he] filed the appeal" and that they indicated "a mitigating circumstance [such that he should be] released on an appeal bond." Clemens did not ask to withdraw his plea, nor did he request any relief other than the setting of an appeal bond.
The State responded that it did not have any objection to the court’s setting a bond in this case, but it stated that it had sent an email to the court and to Clemens’ counsel "with a determination by the Patrol, subsequent to the letter that [Clemens had] offered [to the court] that says, oh, wait a minute, we didn’t know some other things." The State continued by saying that the "issue is not cut and dry, as it would appear from just those two exhibits." The State concluded that it "just want[ed] the Court to be aware of that" and repeated that it did not object to setting a bond. The court then set a bond for Clemens.
Clemens appeals his conviction and sentence.
Clemens claims that the district court "committed plain error by accepting the factual basis at the plea, and by sentencing [him]." Clemens argues that there was no factual basis for the district court to accept his plea, because under the Eighth Circuit’s interpretation of SORA, he was not required to register in Nebraska and therefore he could not have violated SORA by failing to register in Nebraska.
We note that while Clemens claimed that the court committed plain error "by sentencing" him, he does not make a separate argument regarding sentencing per se. Instead, his argument appears to be that because the court should not have accepted his plea, the court should not have sentenced him at all. Therefore, our resolution of the sentencing claim is based entirely on our resolution of the claim relating to acceptance of the plea.
A trial court is given discretion as to whether to accept a guilty plea, and an appellate court will overturn that decision only where there is an abuse of discretion. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).
Statutory interpretation presents a question of law, which an appellate court reviews independently. See State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).
We first address the procedural posture of this case and the manner in which Clemens claims error on appeal. Clemens asserts on appeal that the district court committed plain error when it accepted the factual basis of his plea and sentenced him. In particular, he contends that he was not required to register as a sex offender in Nebraska and that therefore, he could not have been found guilty of a violation or attempted violation of SORA based on a failure to register.
Clemens phrases his assignment of error as an assertion that the court committed "plain error." He apparently raises the issue as plain error because he did not object to the factual basis at the plea hearing and he did not move to withdraw his plea after he received the letter from the Nebraska State Patrol. Thus, Clemens could not assign error based on the court’s "overruling" an objection he did not raise or a motion he did not make.
Instead of seeking a ruling directly challenging the necessity to register, the only point at which Clemens brought to the district court’s attention the issue of whether he was required to register was in the context of the appeal bond hearing. At that hearing, he stated that he was offering evidence regarding the issue of whether he was required to register "just for the purpose of setting the appeal bond" and, as noted above, that the evidence he presented indicated "a mitigating circumstance [such that he should be] released on an appeal bond." Although the State took issue with the import of the evidence offered by Clemens, it stated that it did not object to the court’s setting a bond for Clemens. The court then set a bond for Clemens, and thus, Clemens could not assign error to the denial of a bond.
Regarding the substance of the assertion of plain error in this appeal, we note that in State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016), we concluded that a defendant did not waive a challenge to the factual basis for a plea when he entered a plea. We stated that a sufficient factual basis is a requirement for finding that a plea is entered into understandingly and voluntarily. Therefore, on appeal, one of the limited...
To continue reading
Request your trial
-
Susan W. v. Tara W. (In re Eliza W.)
...to give effect to all parts of a statute such that no sentence, clause, or word is rendered meaningless. See State v. Clemens , 300 Neb. 601, 915 N.W.2d 550 (2018). Several courts have pointed to ICWA’s exclusion of custody awards in divorce proceedings as a reason for not following the Mon......
-
Doe v. Peterson
...... regardless of whether the registration in the other jurisdiction is based on a juvenile adjudication." State v. Clemens , 300 Neb. 601, 915 N.W.2d 550, 560 (2018).Because the Clemens decision was only concerned with whether there was a sufficient factual basis for a guilty plea to a cha......
-
State v. Morton
...is a prerequisite for a judicial finding that the plea was entered into understandingly and voluntarily. See, also, State v. Clemens , 300 Neb. 601, 915 N.W.2d 550 (2018) ; State v. Schiesser , 24 Neb. App. 407, 888 N.W.2d 736 (2016). Additionally, even though Morton did not object to the f......
-
State v. Jenkins
...State v. Dill , 300 Neb. 344, 913 N.W.2d 470 (2018).3 State v. Fox , 282 Neb. 957, 806 N.W.2d 883 (2011).4 See State v. Clemens , 300 Neb. 601, 915 N.W.2d 550 (2018).5 Id.6 State v. Haynes , 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on other grounds, State v. Allen , 301 Neb. 560, 919......