State v. Dodson
| Decision Date | 12 July 1996 |
| Docket Number | No. S-94-1249,S-94-1249 |
| Citation | 550 N.W.2d 347,250 Neb. 584 |
| Parties | STATE of Nebraska, Appellee, v. Brian E. DODSON, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pleas: Appeal and Error. The withdrawal of a guilty plea is addressed to the discretion of the trial court, and its ruling will not be disturbed on appeal absent an abuse of that discretion.
2. Pleas: Appeal and Error. A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court's determination only in case of an abuse of discretion.
3. Appeal and Error. 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 cause a miscarriage of justice or damage the integrity, reputation, or fairness of the judicial process.
4. Pleas. Before accepting a plea of guilty, a trial court must inform the defendant of (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront adverse witnesses, (4) the right to a jury trial, and (5) the privilege against self-incrimination. The court must examine the defendant in order to determine whether the defendant understands that information.
5. Constitutional Law: Pleas: Waiver. A guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination.
6. Pleas: Right to Counsel. A plea of guilty does not waive the constitutional right to counsel.
7. Constitutional Law: Criminal Law: Right to Counsel. The Sixth Amendment to the U.S. Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. Nebraska Constitution art. I, § 11, provides that in all criminal prosecutions, an accused shall have the right to appear and defend in person or by counsel.
8. Right to Counsel. The right to counsel is not restricted to the actual trial on the merits.
9. Criminal Law: Right to Counsel. A person accused of a crime requires the guiding hand of counsel at every step in the proceedings against him.
10. Constitutional Law: Criminal Law: Pleas. A defendant's decision to plead guilty or nolo contendere to a criminal charge is a grave and personal judgment, which a defendant should not be allowed to enter without full comprehension of his constitutional rights.
11. Criminal Law: Right to Counsel: Waiver. An accused is entitled to be represented by counsel in all critical stages of a criminal proceeding against him, but the right to counsel may be waived, if such waiver is made intelligently and understandingly with the knowledge of an accused's right to counsel.
12. Pleas. A coerced guilty plea is not a plea that is made freely, voluntarily, and intelligently.
13. Pleas. A guilty plea admits all facts recited in open court by the State and all facts alleged in the information or complaint, including the fact that the offense was committed and the time and place of its commission.
14. Pleas. Before a trial court can accept a defendant's guilty plea, it must determine whether among other things, a factual basis for the plea exists.
15. Pleas. A guilty plea must be entered freely, intelligently, voluntarily, and understandingly to be accepted by the trial court. In finding that a guilty plea is made freely, intelligently, voluntarily, and understandingly, the court must find that the record establishes a factual basis for that plea.
16. Pleas. A factual basis for a plea of guilty may be established by inquiry of the prosecutor, interrogation of the defendant, or examination of the presentence report. The preferred procedure for ascertaining whether a factual basis exists to support a guilty plea is to inquire directly of the defendant.
17. Criminal Law: Trial: Venue. As a general rule, all criminal cases are to be tried in the county where the offense was committed.
18. Criminal Law: Venue: Proof. Proof of venue is essential in a criminal prosecution.
19. Venue: Proof: Waiver. In the absence of a defendant's waiver by requesting a change of venue, the State has the burden to prove proper venue beyond a reasonable doubt.
Julianne M. Dunn, Omaha, for appellant.
Herbert M. Fitle, Omaha City Attorney, and Martin J. Conboy, III, Omaha City Prosecutor, and Richard L. Dunning, Omaha, for appellee.
Brian E. Dodson pled guilty in Douglas County Court to driving a vehicle while under the influence of alcohol (DUI) and to purposely or knowingly carrying a concealed weapon.
Dodson later moved to withdraw a guilty plea and vacate judgment, claiming that the plea was not knowingly and voluntarily entered. The county court denied Dodson's motion, and the district court affirmed that judgment. On appeal, the Nebraska Court of Appeals affirmed the judgment of the district court. Dodson successfully petitioned for further review by this court.
We reverse the decisions of the lower courts and hold that Dodson did not knowingly and voluntarily waive counsel and, as a result, did not freely, intelligently, voluntarily, and understandingly plead guilty. We also hold that there was not an adequate factual basis presented by the State to support the charges made against Dodson.
Dodson claims that the district court erred in affirming the denial of his motion to withdraw a guilty plea and in affirming his "conviction" and "sentence."
The withdrawal of a guilty plea is addressed to the discretion of the trial court, and its ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Spahnle, 238 Neb. 265, 469 N.W.2d 780 (1991). A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court's determination only in case of an abuse of discretion. State v. Perez, 235 Neb. 796, 457 N.W.2d 448 (1990).
On August 19, 1994, at 2 a.m., police observed Dodson driving erratically. Upon being stopped, Dodson cooperated with police and submitted to an alcohol breath test. He scored .139 of 1 gram of alcohol per 210 liters of breath on the breath test which is over the statutory limit of .10. Dodson was arrested for DUI. During the arrest, an officer found a handgun under the seat of the automobile Dodson was driving.
Dodson was charged by a State complaint with DUI in violation of Neb.Rev.Stat. § 60-6,196 (Reissue 1993), a Class W misdemeanor, and by a city of Omaha complaint with purposely or knowingly carrying a concealed weapon in violation of Omaha Mun.Code § 20-192. The record reflects that Dodson was also charged with driving left of the centerline and a vehicle light violation; both charges were ultimately dismissed at his arraignment.
Early in the afternoon of August 19, to an assembled group of defendants which included Dodson, the trial court explained a defendant's rights (1) to a presumption of innocence, (2) to a jury trial, (3) to confront one's accusers, (4) against self-incrimination, (5) to present witnesses, and (6) to counsel, and the court explained the State's burden of proof. Regarding the right to counsel, the court stated:
[Y]ou have the right to a lawyer, either one hired by yourself, if you can afford to do that, or if you convince me that you can't afford your own lawyer, then I can appoint a lawyer from the Public Defender's Office to represent you, for whom you will not be charged anything. But you have to convince me that you're eligible for a public defender, which means you have to be able or willing to discuss your financial affairs with me this afternoon.
The court then explained how the defendants could plead. In pertinent part, the court stated: "If you plead guilty this afternoon, you give up all of those rights I just described, no trial, no lawyer, no rights." (Emphasis supplied.) The court further explained to the defendants that
[i]f you plead not guilty, you will get a trial, but not until probably the latter part of September. The problem that that creates that if you are unable to post the bond that I order you to post, that means you're going to sit in jail for a month or so until your trial date rolls around. So keep that in mind.
(Emphasis supplied.)
Later in the afternoon of August 19, the court proceeded to call each defendant before the bench for an individual arraignment. Dodson was arraigned without counsel. The trial court asked Dodson if he understood all of the rights the court had earlier described to the assembled defendants. Dodson answered that he understood and pled guilty to the charges brought against him. The court then said to Dodson: (Emphasis supplied.) Dodson answered that he understood.
The State offered the following factual basis for the DUI and carrying a concealed weapon charges:
He [Dodson] was stopped for driving erratically, Your Honor, August 19th, 30th and Fowler, about 2:00 this morning. The defendant was cooperative but obviously intoxicated. He test [sic] .139--139 on the breath test. There was a gun found-- handgun that was found I guess under the seat that was his.
(Emphasis supplied.) No presentence report was prepared prior to sentencing.
Without any further questions to the State or to Dodson, the trial court accepted Dodson's guilty pleas. The trial court sentenced Dodson to concurrent prison terms of 30 days for DUI and 60 days for carrying a concealed weapon. Additionally, for the DUI conviction, the trial court suspended and revoked Dodson's motor vehicle operator's license for a period of 6 months to begin upon his discharge from jail...
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...a defendant must first make a knowing and intelligent waiver of the right to counsel. Faretta, supra; State v. Dodson, 250 Neb. 584, 550 N.W.2d 347 (1996), overruled on other grounds, State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999); State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991); St......
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...knew the range of penalties for the crime with which he or she is charged. Id. at 820, 394 N.W.2d at 883. See, also, State v. Dodson, 250 Neb. 584, 550 N.W.2d 347 (1996); State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 Although we had previously written in State v. Curnyn, 202 Neb. 135, 140......
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State v. Paul
...15, 1998, the Nebraska Court of Appeals reversed, and remanded on two grounds, both plain error. First, relying on State v. Dodson, 250 Neb. 584, 550 N.W.2d 347 (1996), the court held that Paul "was erroneously instructed that he had the right to counsel, but that if he pled guilty, he gave......