State v. Richter

• Decision Date: 26 July 1985
• Docket Number: No. 85-066,85-066
• Citation: 220 Neb. 551,371 N.W.2d 125
• Parties: STATE of Nebraska, Appellee, v. Gerald RICHTER, Appellant.
• Court: Nebraska Supreme Court

Page 125

371 N.W.2d 125

220 Neb. 551

STATE of Nebraska, Appellee, v. Gerald RICHTER, Appellant.

No. 85-066.

Supreme Court of Nebraska.

July 26, 1985.

Syllabus by the Court

1. Pleas. A plea must represent a voluntary and intelligent choice among the alternative courses of action open to the defendant.

2. Pleas. The record must affirmatively show the defendant entered his plea understandingly and voluntarily.

3. Pleas. The factual basis for a plea may be determined by inquiry of the defendant or county attorney, or by examination of the presentence investigation.

4. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal unless the trial court abused its discretion.

Kathy Goudy, Lincoln, and James T. Hansen, for appellant.

Robert M. Spire, Atty. Gen., and Dale A. Comer, Asst. Atty. Gen., for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

BOSLAUGH, Justice.

Upon pleas of no contest to felonious destruction of property and misdemeanor destruction of property in violation of Neb.Rev.Stat. § 28-519 (Reissue 1979), the defendant was sentenced to imprisonment for 1 to 2 years on count I and 6 months on count II, the sentences to run concurrently. The defendant has appealed and has assigned as error (1) that his pleas were not voluntarily made, (2) that no factual basis existed for the pleas, and (3) that the sentences imposed were excessive.

The defendant originally pleaded "not guilty" to three felony counts including a charge of use of a firearm in the commission of a felony. He subsequently changed his pleas to "no contest" pursuant to a plea bargain in which the third count was dismissed and the second count reduced to misdemeanor destruction of property. The State also agreed to make no comments regarding the sentencing.

At the arraignment on the amended information, the trial court explained the nature of the charges and possible penalties and that the court was not bound by any plea bargain. The court further explained that a plea of "no contest" waived the defendant's constitutional rights to a jury trial, compulsory process, confrontation, the presumption of innocence, and the requirement the State prove his guilt beyond a reasonable doubt. To each of these advisements the defendant replied that he understood. During the arraignment, some reference was made to advice concerning constitutional rights that had been made at an earlier arraignment. The record of that arraignment is not before us.

When an assertion is made that a plea of guilty was involuntarily made, one of the propositions that may be inherent in that claim is that some, if not all, of the defendant's constitutional rights were either not explained to or waived by the defendant. As the defendant chose not to include the entire proceedings, i.e., the initial arraignment, in the bill of exceptions, we do not consider any deficiency that may have existed in the court's explanation of the defendant's constitutional rights.

Following a statement as to the factual basis for the charges by the deputy county attorney, the defendant's plea was accepted, and he was found guilty as charged. Sentence was imposed later, after receipt of a presentence report. At all times the defendant was represented by counsel and stated that he was satisfied with that representation.

A plea of no contest places the defendant in the same position as a plea of guilty so far as sentencing is concerned. Such a plea must represent a voluntary and intelligent choice among the alternative courses of action open to the defendant. State v. Turner, 186 Neb. 424, 183 N.W.2d 763 (1971); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

It is clear from the record before us that the defendant's pleas in this case were voluntarily and intelligently made.

Although the defendant contends that he pleaded "no contest" under the impression that he would receive a light jail sentence, the trial court made it clear that the court was not bound by any agreement limiting sentence and specifically told the defendant the court would not accept his plea if the defendant believed that was the case. The defendant understood the court's position. The court said, "but I want you to know today clearly on the record without a doubt, that I'm not bound by any sentencing. And if you think I am, I'm not going to accept your pleas. Do you see what I mean?" The defendant replied, "Yes."

A defendant has no legal basis to rely on a sentence recommendation as part of a plea agreement where the trial court has made it clear that it was not in any way bound by such agreement. State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981); State v. Hutton, 218 Neb. 420, 355 N.W.2d 518 (1984). The first assignment is without merit.

In his second assignment of error the defendant claims there was no evidence that the felonious destruction of property in count I exceeded $300 as required under the statute. See § 28-519(2).

The factual basis as recited in court established that on June 27, 1984, following a fight with the proprietor of the Wooden Nickel Bar in Scottsbluff, Nebraska, the defendant left the bar, only to return about 10 minutes later with a shotgun. He then shot out two double pane glass windows at the front of the bar and the windshield of a car parked nearby. Defendant was also seen walking on the hood, top, and back of...