State v. Martinez-Estrada, 020618 NECA, A-17-526
| Judge | Moore, Chief Judge, and Bishop and Arterburn, Judges. |
| Parties | State of Nebraska, appellee, v. Jose E. Martinez-Estrada, appellant. |
| Docket Number | A-17-526 |
| Court | Nebraska Court of Appeals |
| Date | 06 February 2018 |
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 Platte County: Robert R. Steinke, Judge. Affirmed.
Timothy P. Matas, Platte County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
Moore, Chief Judge, and Bishop and Arterburn, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
BISHOP, JUDGE.
Jose E. Martinez-Estrada pled no contest to one count of driving under revocation, a Class IV felony. The district court for Platte County sentenced him to 2 years' imprisonment, and 9 months' post-release supervision. The district court also ordered his license revoked for 15 years. Martinez-Estrada claims the State breached the plea agreement and the district court imposed an excessive sentence. For the following reasons, we affirm.
BACKGROUND
On January 25, 2017, the State filed an information charging Martinez-Estrada with one count of driving under revocation, a Class IV felony, pursuant to Neb. Rev. Stat. § 60-6, 197.06 (Cum. Supp. 2016). We note that Martinez-Estrada's offense occurred after August 30, 2015, the effective date of 2015 Neb. Laws, L.B. 605, which changed the classification of certain crimes and made certain amendments to Nebraska's sentencing laws.
On March 22, 2017, Martinez-Estrada pled "no contest" to one count of driving under revocation. Pursuant to a plea agreement, the State agreed to "stand silent at sentencing." According to the factual basis provided by the State, [O]n September 21st of 2016, at approximately 3:23 in the afternoon, Deputy Alexander was participating in a vehicle inspection operation in the area of East 8th Street and East 14th Avenue in Columbus, Platte County, Nebraska. He had contact with the driver of a Pontiac Grand Am. The driver identified himself with a Mexican identification card as the defendant, Jose E. Martinez-Estrada. Jose stated that he did not have a valid driver's license as soon as he handed over the card to the officer. He was also not wearing his seatbelt at the time of his contact with Deputy Alexander.
Records check indicated that there was no record of a driver's license being issued to Jose. Jose was placed under arrest and transported to the Platte County Detention Facility. At that time -- he was essentially issued a citation for no seatbelt and he was placed under arrest for not having a license. However, at that time I don't think that Deputy Alexander realized that it was based on a revocation, not just a simple no ops. And the State has the prior record, a certified copy of the prior record of conviction, which the State would -- which the State has marked as Exhibit 1 and would produce as evidence for the purposes of a factual basis.
. . . . [The exhibit was received for purposes of a factual basis without objection.]
Essentially indicates that there is a 15-year revocation in place based on a July 12, 2004, Platte county sentence in county court case, CR04-657.
For the record, I'd note that this stop came about based on a vehicle stop. It wasn't a situation where there was a DUI or any other -- well -- or any other additional nefarious bad act.
The district court accepted Martinez-Estrada's no contest plea to one count of driving under revocation, and found him guilty of the same. The case was set for sentencing.
After a hearing on May 12, 2017, the district court sentenced Martinez-Estrada to 2 years' imprisonment, with 1 day of credit for time served, followed by 9 months of post-release supervision; his driver's license was also ordered revoked for 15 years.
Martinez-Estrada now appeals.
ASSIGNMENTS OF ERROR
Martinez-Estrada assigns, reordered, that (1) the State breached the plea agreement and the court erred by allowing the entrance of an exhibit over objection, and (2) the district court imposed an excessive sentence.
STANDARD OF REVIEW
When the facts are undisputed, the question of whether there has been a breach of a plea agreement is a question of law. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017). When issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013).
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017). A judicial abuse of discretion exists 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
Plea Agreement.
Martinez-Estrada claims that the State breached the plea agreement that it would "stand silent at sentencing."
At the sentencing hearing on May 12, 2017, the court noted that it had reviewed the presentence investigation report (PSI), which had been submitted on April 27, and would consider its contents when imposing sentence. The court asked the State if it had an opportunity to review the PSI, and the State responded affirmatively. The court asked if there were "[a]ny additions or corrections on behalf of the State." The State said it did "have evidence that it would like to offer for the [PSI], " and offered exhibit 2 for sentencing. Exhibit 2 contained an "Arrest/Detention Probable Cause Affidavit" which stated that on April 16, Martinez-Estrada was alleged to have committed the following offenses: driving under the influence of alcohol (second offense); driving under revocation; expired registration; and a stop sign violation. Exhibit 2 also contained a complaint entered in the county court for Platte County on May 2, charging Martinez-Estrada with two counts arising from his alleged actions on April 16: (1) driving under 15-year revocation (second offense), a Class IIA felony, under § 60-6, 197.06; and (2) DUI, second offense, a Class W misdemeanor, under Neb. Rev. Stat. § 60-6, 196 (Reissue 2010).
When asked if he wished to be heard, Martinez-Estrada's counsel (a deputy public defender) said, "I would resist, but I don't know if [the Platte County Public Defender] knew about this before the hearing or not. I'm not even sure it happened." The court overruled "any objections" and received the exhibit for sentencing purposes. Martinez-Estrada's counsel was asked if he had any additions or corrections to the PSI, and counsel said he did not.
The court then told the State it "may be heard by way of allocution." In response, the State said, "Your Honor, the plea agreement in this case . . . indicated that the State would stand silent at sentencing and the State is complying with that plea agreement."
Martinez-Estrada's counsel was then given an opportunity for allocution. Counsel said he "would ask the Court to disregard the addition in the spirit of the plea agreement." He also asked the Court to consider that the offense was nonviolent, and was a driving offense that did not involve a DUI. Counsel asked the court "not to send [Martinez-Estrada] to prison for a driving offense[.]" Counsel said his client informed him he sold his car, and "with that, we just pray for mercy."
Martinez-Estrada claims the State breached the plea agreement at sentencing by offering exhibit 2 (evidence of recent charges after the completion of the PSI), which he claims was "making a statement" and violated the State's agreement to stand silent. He also argues the court erred by allowing the exhibit over objection. The State submits that there was no breach of the plea agreement. It claims that offering exhibit 2 was in response to the court's inquiry regarding corrections or additions to the PSI.
We need not decide whether the State's offer...
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