State v. Ettleman

• Decision Date: 12 July 2019
• Docket Number: No. S-17-782.,S-17-782.
• Citation: 303 Neb. 581,930 N.W.2d 538
• Parties: STATE of Nebraska, appellee, v. Tammy J. ETTLEMAN, appellant.
• Court: Nebraska Supreme Court

303 Neb. 581

930 N.W.2d 538

STATE of Nebraska, appellee,

v.Tammy J. ETTLEMAN, appellant.

No. S-17-782.

Supreme Court of Nebraska.

Filed July 12, 2019

NATURE OF CASE

We granted the State’s petition for further review of the decision of the Nebraska Court of Appeals which reversed Tammy J. Ettleman’s plea-based conviction for felony child abuse. The Court of Appeals concluded that the factual basis presented by the State was not sufficient to support Ettleman’s no contest plea and therefore "reverse[d] the order of the district court [for Saunders County] which accepted that no contest plea and ... vacate[d] Ettleman’s conviction for felony child abuse." State v. Ettleman , No. A-17-782, 2018 WL 3902173 at *5 (Neb. App. Aug. 14, 2018) (selected for posting to court website). Ettleman had also pled no contest to a count of attempted possession of a controlled substance, and the Court of Appeals affirmed that plea-based conviction. However, the Court of Appeals reasoned that "because the district court ordered only one sentence for both convictions," it must vacate the sentence and remand the matter for resentencing on Ettleman’s conviction for attempted possession of a controlled substance. Id. at *1.

The State claims on further review that the Court of Appeals erred both when it found there was not a sufficient factual basis for the plea to felony child abuse and when it "suggest[ed]" that Ettleman could not be subject to retrial on the child abuse charge upon remand.

We conclude that the Court of Appeals did not err when it found that there was not a sufficient factual basis for the felony child abuse plea. However, we determine that the Court of Appeals erred in its disposition, because it focused only on the conviction for felony child abuse rather than setting forth a remedy focused on the entire plea agreement. We therefore affirm in part and in part reverse the decision of the Court of Appeals, and we remand the cause to the Court of Appeals with directions as set forth herein.

STATEMENT OF FACTS

In its memorandum opinion, the Court of Appeals set forth the facts of this case for which we find support in the record as follows:

On January 17, 2017, the State filed an information charging Ettleman with: count I, delivery of a controlled substance, a Class II felony, pursuant to Neb. Rev. Stat. § 28-416 (Reissue 2016) ; count II, aiding and abetting delivery of a controlled substance, a Class II felony, pursuant to § 28-416 and Neb. Rev. Stat. § 28-206 (Reissue 2016) ; and count III, child abuse, a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-707 (Reissue 2016).

On March 27, 2017, pursuant to a plea agreement, Ettleman pled "no contest" to an amended count I (now attempted possession of a controlled substance, a Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-201 (Reissue 2016) ) and count III (child abuse); the State agreed to dismiss count II (aiding and abetting delivery of a controlled substance). The State provided the following factual basis:

"On November 28, 2016, officers with III Corps Drug Task Force and Cedar Bluffs Police Department executed a search warrant on the residence of Tanya Brainard, Cedar Bluffs, Saunders County. In the course of that search warrant, the investigation discovered that the defendant, Tammy Ettleman, had been providing narcotics to Tanya Brainard and that a significant balance was remaining.

"In the course of the investigation, [Ettleman] agreed to — arrived at Tanya Brainard’s home a few blocks away in exchange — to receive some of the past due account, as well as sell some new pills, that being oxycodone. [Ettleman] indicated that she had her 11-year-old son, identified by initials CE, born in 2005, with her and that he was still in his PJs.

"While the officers were still present, [Ettleman] arrived at the Brainard residence with her son, CE, and for the purpose of the plea agreement, did attempt to possess oxycodone, a Schedule II narcotic substance. These events [occurred] in Saunders County."

When asked if there were any comments to the factual basis, Ettleman’s attorney stated, "Would address those at sentencing, Your Honor." The district court proceeded to find the "factual basis sufficient to convict [Ettleman] on her no contest pleas." The court found the pleas were entered into knowingly and voluntarily, and found Ettleman guilty as charged in count I as amended and count III. The matter was then scheduled for sentencing.

At the sentencing hearing, Ettleman said she realized she made mistakes, "but [she] would never put [her] son in danger." She acknowledged giving Brainard "a couple pills here and there, which [she] should not have done, and that was a huge mistake." She said she was not "this big drug dealer," rather, she felt sorry for Brainard. She "did not take [her son] there trying to put him into any danger whatsoever. [She] would never do that." She went on to say, "I love my son very much, and, you know, I went in there, asked if [Brainard] was there and went out. That was all that it was. It was not trying to put him in danger at all, you know." She said she was "taken aback" when she came in "for the status hearing" after being told it was going to be a misdemeanor, "and then they threw this felony child abuse in on me." The court proceeded to order one sentence of 24 months' probation for both convictions (without any noted separation or apportionment of the sentence between the two convictions), with various conditions, including serving 90 days in jail (to be served in three waivable 30-day terms). The court’s written order of probation was filed June 26, 2017. Ettleman timely appealed.

State v. Ettleman , No. A-17-782, 2018 WL 3902173 at *1-2 (Neb. App. Aug. 14, 2018) (selected for posting to court website). To clarify the sentencing, we note that in its order, the district court set forth the length and terms of probation as being applicable to both convictions but it stated that the jail time was specifically applicable to the conviction for attempted possession of a controlled substance.

Ettleman claimed on appeal to the Court of Appeals that the district court erred when it found that the State had presented a sufficient factual basis to support her plea of no contest to felony child abuse. We have long held that a factual basis is required to show that a plea was made understandingly and knowingly, see State v. Irish , 223 Neb. 814, 394 N.W.2d 879 (1986), and that a challenge to the understandingly and voluntary nature of the plea can be made on appeal, see State v. Mason , 187 Neb. 675, 193 N.W.2d 576 (1972). The Court of Appeals found merit to Ettleman’s claim that the factual basis was insufficient. The Court of Appeals first rejected the State’s argument that Ettleman had waived a challenge to the factual basis when she did not object to the factual basis in the district court. The Court of Appeals cited our decision in State v. Wilkinson , 293 Neb. 876, 881 N.W.2d 850 (2016), in which we reasoned that a sufficient factual basis is a requirement for a finding that a plea was entered into understandingly and voluntarily and that, because one of the limited challenges that may be made to a plea-based conviction on appeal is whether the plea was understandingly and voluntarily made, a defendant does not waive a challenge to the factual basis when he or she enters a plea. See, 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). The State does not challenge this ruling on further review.

The Court of Appeals then identified the elements of felony child abuse as set forth in Neb. Rev. Stat. § 28-707(1) (Reissue 2016), which provides in relevant part:

A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be:

(a) Placed in a situation that endangers his or her life or physical or mental health;

(b) Cruelly confined or cruelly punished;

(c) Deprived of necessary food, clothing, shelter, or care;

(d) Placed in a situation to be sexually exploited ...; (e) Placed in a situation to be sexually abused ...; or

(f) Placed in a situation to be a trafficking victim ....

Under § 28-707(4), if the child abuse offense is committed knowingly and intentionally and does not result in serious bodily injury or death, it is a Class IIIA felony.

The Court of Appeals determined that based on the plain language of § 28-707(1), the factual basis that was set forth by the State at Ettleman’s plea hearing did not show that Ettleman knowingly and intentionally placed her son in a situation that endangered his life or physical or mental health, nor did it show a basis for any of the other ways set forth in the statute for committing child abuse. The Court of Appeals acknowledged that it could look beyond the factual basis given at the plea hearing and consider other material when deciding whether a factual basis existed. The Court of Appeals therefore examined the presentence investigation report and noted that it contained further details regarding the events that gave rise to the charges against Ettleman.

After considering the record as a whole, including information in the presentence investigation report, the Court of Appeals stated:

Ettleman took her son to her friend’s house at approximately 8:30 in the evening, and immediately left when she realized her friend was not home. While we acknowledge that Ettleman went to the home to sell prescription medication, an illegal action, we fail to see, based on these facts, how Ettleman knowingly and intentionally exposed her child’s life or physical or mental health to danger or the peril of probable harm or loss.

State v. Ettleman , No. A-17-782, 2018 WL 3902173 at *4 (Neb. App. Aug. 14, 2018) (selected for posting to court website). The Court of Appeals concluded that the record did not show a sufficient factual basis to meet the elements under § 28-707(1) and (4) and that therefore, the district...