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

State of Nebraska, appellee,
v.
Alisia C. Cooke, appellant

No. S-21-320

Supreme Court of Nebraska

May 6, 2022

1. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal, an appellate court will review the record only for plain error.

2. Appeal and 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.

3. Sentences: Appeal and Error. Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits.

4. Judges: Words and Phrases. 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.

5. Appeal and 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.

6. ____. An appellate court will find plain error only when a miscarriage of justice would otherwise occur.

7. Trial: Prosecuting Attorneys. Prosecutors are charged with the duty to conduct criminal trials in a manner that provides the accused with a fair and impartial trial.

8. Prosecuting Attorneys: Words and Phrases. Because prosecutors are held to a high standard for a wide range of duties, the term "prosecutorial misconduct" cannot be neatly defined.

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[311 Neb. 512] 9. Trial: Prosecuting Attorneys: Words and Phrases. 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.

10. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial misconduct based on prosecutorial remarks, a court first determines whether the prosecutor's remarks were improper. 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.

11. Sentences. The first step in analyzing whether a sentence is excessive is to examine the statutory limits on the penalties for such an offense.

12. ___ . If a sentence is within statutory limits, the second step is to determine whether the sentencing court abused its discretion in considering well-established factors and any applicable legal principles.

13. ___ . 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, (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. The sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing judge's observations of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

14. Courts: Plea Bargains. In Nebraska, a court is not bound by the plea agreement made between a defendant and the government.

Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Affirmed.

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.

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[311 Neb. 513] 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...