State v. Cooke

• Decision Date: 06 May 2022
• Docket Number: S-21-320.
• Parties: STATE of Nebraska, appellee, v. Alisia C. COOKE, appellant.
• Court: Nebraska Supreme Court

311 Neb. 511

973 N.W.2d 658

STATE of Nebraska, appellee,

v.Alisia C. COOKE, appellant.

No. S-21-320.

Supreme Court of Nebraska.

Filed May 6, 2022

April L. O'Loughlin, Deputy Sarpy County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

The appellant, Alisia C. Cooke, pled guilty to second degree murder in the district court for Sarpy County. Although she had reached a plea agreement under which the State would "make a recommendation of a sentence of 20 years," she was ultimately sentenced to a period of incarceration of no less than 60 years and no more than life. This is Cooke's direct appeal. Cooke argues that the State engaged in prosecutorial misconduct by failing to make a sentencing recommendation consistent with the plea agreement. She further claims that the sentence imposed is excessive. We affirm.

STATEMENT OF FACTS

On March 15, 2019, Cooke entered a plea of guilty to one count of second degree murder, a Class IB felony, arising from the killing of Brent Quigley. Quigley was stabbed during a home robbery in 2018, and Cooke was among several defendants charged in the district court for Sarpy County in connection with Quigley's death. Cooke agreed to cooperate fully with the State and provided deposition and trial testimony against two codefendants, who were ultimately convicted of second degree murder and first degree murder. In return for her truthful testimony and plea, in a written plea agreement, the State agreed to advise the court of the nature and extent of Cooke's cooperation and to make a recommendation of "a sentence of 20 years in imprisonment."

A presentence investigation report was prepared for the court. The district court held a sentencing hearing on March 25, 2021, with the parties appearing via videoconferencing.

Counsel for Cooke addressed the court and requested that the trial court should "follow the plea agreement in this matter and the State's sentencing recommendation of 20 years with a maximum sentence of ten years," minus credit for time served.

The prosecutor disagreed with Cooke's characterization of the plea agreement. Because the prosecutor's representations to the court are material to Cooke's claims on appeal, several of the prosecutor's remarks regarding sentencing are set forth below:

The State does appreciate that she assisted in the prosecution of the codefendants, ... but that doesn't excuse her behavior by any means.

Judge, I'd also note — I do have a copy of the plea agreement, which I believe is Exhibit 2, and I'm sure the Court has reviewed that previously, because I don't agree with [Cooke's counsel's] characterization of the plea agreement, Judge. She said that it's 20 years max and I don't agree that that's the language. I realize that maybe the language could have been clearer between the parties, but that is what the agreement is. And I can read it for the Court. It says [Cooke] shall also enter a plea of guilty to an amended charge of second-degree murder, Class 1B felony, punishable by a minimum of 20 years imprisonment and a maximum of imprisonment for life. In return for her truthful testimony, the State agrees at time of sentencing to advise Judge Martinez of the nature and extent of [Cooke's] cooperation and to make a recommendation of a sentence of 20 years imprisonment; however, Judge Martinez does not have to abide by the 20-year recommendation.

Judge, the State's going to stand by that recommendation because that's what the language is; however, I don't believe that's the same as saying that that's what — that that's what maximum is. The State is going to stand by that 20-year recommendation as outlined in the plea agreement.

Counsel for Cooke responded that it

sounds back ended like maybe the State isn't standing by that sentencing recommendation. But anticipating that that language in the plea agreement might potentially become an issue, on February 27, 2019, I sent an email to [the prosecutor] prior to discussing this plea agreement with my client and prior to her entering that into the Court.

Cooke offered as evidence a February 27, 2019, email from the State's prosecutor to her counsel, which email states that "[t]he sentence would be 20 years imprisonment which is in cut [sic] in half so it would be 10 years imprisonment. Thanks for clarifying." At the sentencing hearing, the prosecutor stated that the February 27 email "is not part of the plea agreement."

Counsel for Cooke made no objections to the remarks made by the prosecutor at the sentencing hearing.

The district court rejected the 20-year recommendation of the plea agreement. It stated that "the sentence that the State has recommended in the plea agreement would depreciate the seriousness of this crime and would promote disrespect for the law. For those reasons, the Court is not going to go along with that recommendation." The district court sentenced Cooke to a period of incarceration of no less than 60 years and no more than life. Cooke received credit for 1,017 days already served.

Cooke is represented in this appeal by her trial counsel.

ASSIGNMENTS OF ERROR

Cooke assigns, summarized and restated, that the State engaged in prosecutorial misconduct by breaching the plea agreement. She further claims that the district court erred when it imposed an excessive sentence.

STANDARDS OF REVIEW

When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal, we will review the record only for plain error. State v. Kipple , 310 Neb. 654, 968 N.W.2d 613 (2022). An appellate court may find plain error 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. Id.

Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits. State v. Grant , 310 Neb. 700, 968 N.W.2d 837 (2022). 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 just results in matters submitted for disposition. Id.

ANALYSIS

In this direct appeal, Cooke claims that the State committed prosecutorial misconduct by breaching the parties’ plea agreement with respect to the recommended sentence. In the alternative, she claims that the district court imposed an excessive sentence and abused its discretion.

Prosecutorial Misconduct.

Cooke assigns that the prosecutor engaged in misconduct with respect to the sentencing recommendations embodied in the parties’ plea agreement. Cooke has maintained throughout the trial court proceedings and in this appeal that the plea agreement between the parties obligated the State to recommend a sentence of 20 years’ imprisonment with a maximum sentence of 10 years’ imprisonment.

As an initial matter concerning our review, we note that Cooke did not object to the prosecutor's remarks at the sentencing hearing. She did not seek to withdraw the plea or seek specific performance of the plea agreement by way of sentencing before a different judge. See State v. Iddings , 304 Neb. 759, 936 N.W.2d 747 (2020). When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal, we will review the record only for plain error. State v. Dubray , 289 Neb. 208, 854 N.W.2d 584 (2014). Thus, we review Cooke's assertion of prosecutorial misconduct based on the prosecutor's remarks at sentencing for plain error.

An appellate court may find plain error 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. Id. Generally, we will find plain error only when a miscarriage of justice would otherwise occur. Id. " ‘[T]he plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." ’ " State v. Barfield , 272 Neb. 502, 511, 723 N.W.2d 303, 312 (2006) (quoting United States v. Young , 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) ), disapproved on other grounds, State v. McCulloch , 274 Neb. 636, 742 N.W.2d 727 (2007).

Prosecutors are charged with the duty to conduct criminal trials in a manner that provides the accused with a fair and impartial trial. State v. Dubray, supra . Because prosecutors are held to a high standard for a wide range of duties, the term "prosecutorial misconduct" cannot be neatly defined. Id. Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may undermine a defendant's right to a fair trial. State v. Kipple , 310 Neb. 654, 968 N.W.2d 613 (2022).

In assessing allegations of prosecutorial misconduct based on prosecutorial remarks, a court first determines whether the prosecutor's remarks were improper. See id. Next, a reviewing court must determine the extent to which the improper remarks had a prejudicial effect on the defendant's right to a fair trial. See id.

Turning to the case before us, Cooke maintains that the statements by the prosecutor concerning the sentence "effectively undermine[d] the promised recommendation" and violated the plea agreement. See State v. Landera , 285 Neb. 243, 257, 826 N.W.2d 570, 578 (2013). Specifically, Cooke points to the following statement by the prosecutor: "I don't agree with [Cooke's counsel's] characterization of the plea agreement, Judge. She said that it's 20 years max and I don't agree that that's the language." Cooke further takes issue with the...