State v. Ettleman

• Decision Date: 14 August 2018
• Docket Number: No. A-17-782.,A-17-782.
• Parties: STATE OF NEBRASKA, APPELLEE, v. TAMMY J. ETTLEMAN, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE, v. TAMMY J. ETTLEMAN, APPELLANT.

No. A-17-782.

NEBRASKA COURT OF APPEALS

August 14, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Saunders County: MARY C. GILBRIDE, Judge. Affirmed in part, reversed and vacated in part, and in part vacated and remanded with directions.

Thomas J. Klein, Saunders County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

RIEDMANN, BISHOP, and WELCH, Judges.

BISHOP, Judge.

Tammy J. Ettleman pled no contest to one count of attempted possession of a controlled substance, a Class I misdemeanor, and one count of child abuse, a Class IIIA felony. The district court for Saunders County sentenced her to 24 months' probation. Ettleman claims there was not a sufficient factual basis to support her no contest plea and conviction for felony child abuse. We agree. We therefore reverse the order of the district court which accepted her no contest plea to felony child abuse, and we vacate that conviction. And because the district court ordered only one sentence for both convictions, we vacate Ettleman's sentence and remand for resentencing on her conviction for attempted possession of a controlled substance.

BACKGROUND

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 followng 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 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 the defendant 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.

ASSIGNMENT OF ERROR

Ettleman assigns that the district court erred in finding the State presented a sufficient factual basis to support her no contest plea and conviction for felony child abuse.

STANDARD OF REVIEW

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. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).

ANALYSIS

Ettleman argues that the factual basis provided by the State was not sufficient for the trial court to find her guilty of felony child abuse. The State claims that because Ettleman pled no contest to the charge, and at no point objected to the factual basis, her claim on appeal is "defaulted, or is without merit." Brief for appellee at 3. However, entering a plea does not waive a defendant's ability to challenge an insufficient factual basis. As stated by the Nebraska Supreme Court in State v. Wilkinson, 293 Neb. at 881, 881 N.W.2d at 855:

A plea of no contest is equivalent to a plea of guilty. To support a plea of guilty or no contest, the record must establish that (1) there is a factual basis for the plea and (2) the defendant knew the range of penalties for the crime with which he or she is charged. When a court accepts a defendant's plea of guilty or no contest, the defendant is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel. A sufficient factual basis is a requirement for finding that a plea was entered into understandingly and voluntarily. Therefore, [the defendant] has not waived his challenge to the factual basis.

The State argues Wilkinson is a "lone case" and that it is irreconcilable with the cases that precede it. Brief for appellee at 5. The State cites to State v. Burkhardt, 258 Neb. 1050, 607 N.W.2d 512 (2000), which held that the voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge whether the defense is procedural, statutory, or constitutional. The State then claims "[i]t is a very short and logical extension of that rule to say that a guilty or no contest plea waives any complaint regarding the factual basis for the plea as well." Brief for appellee at 4-5. We disagree. First of all, the proposition in Burkhardt relates to a "voluntary plea," and a sufficient factual basis is a requirement for finding the plea is voluntary. Additionally, in Burkhardt there was a sufficient factual basis for the pleas in that case. We do not read Burkhardt and Wilkinson to be inconsistent, and we find Wilkinson to be controlling here.

Wilkinson is clear that a defendant has not waived a challenge to the factual basis by entering a plea, because a sufficient factual basis is a requirement for finding that the plea was entered into understandingly and voluntarily. See, also, State v. Clemens, 300 Neb. 601, ___ N.W.2d ___ (2018) (noting that defendant in Wilkinson, supra, did not waive challenge to factual basis for plea when entering plea); State v. Schiesser, 24 Neb. App. 407, 888 N.W.2d 736 (2016) (following Wilkinson and rejecting State's claim that defendant's no contest plea either waived ability to challenge factual basis or judicially estopped him from asserting position on appeal which contradicted his position at the trial level). Furthermore, even though Ettleman did notobject to the factual basis, the issue was clearly before the trial court because it was required to determine that a factual basis existed before it accepted Ettleman's no contest plea to felony child abuse and found her guilty of the same. See State v. Workman, 22 Neb. App. 223, 857 N.W.2d 349 (2014) (this court reversed and vacated defendant's convictions and sentences after finding that trial court erred in accepting defendant's guilty pleas without a factual basis; lack of factual basis raised for first time on motion for rehearing in appellate court). Therefore, Ettleman has not waived her challenge to the factual basis.

To ascertain whether the State's factual basis for felony child abuse was sufficient, we must identify the elements of the statute under which Ettleman was convicted and determine whether the factual basis meets those elements. See id. Ettleman was convicted of violating § 28-707(1), which states 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 . . . .

Child abuse is a Class IIIA felony if the offense is committed knowingly and intentionally and does not result in serious bodily injury or death. § 28-707(4). "Endangers" as used in § 28-707(1)(a) means to expose a...