State v. Schanaman
| Decision Date | 21 June 2013 |
| Docket Number | No. S–12–808,S–12–808 |
| Citation | 835 N.W.2d 66,286 Neb. 125 |
| Parties | State of Nebraska, Appellee, v. David Schanaman, Appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the District Court for Kimball County, Derek C. Weimer, Judge, on appeal thereto from the County Court for Kimball County, Randin Roland, Judge. Judgment of District Court affirmed.
Todd Morten, of Island & Huff, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.
[286 Neb. 125]1. Pleas: Appeal and Error. The right to withdraw a plea previously entered is not absolute. And, in the absence of an abuse of discretion, refusal to allow a defendant's withdrawal of a plea will not be disturbed on appeal.
2. Pleas. When a defendant moves to withdraw his or her plea before sentencing, a court, in its discretion, may grant the motion for any fair and just reason, if such withdrawal would not substantially prejudice the prosecution.
3. Indictments and Informations: Courts.Neb.Rev.Stat. § 29–1802 (Reissue 2008) does not apply to complaints in county court.
4. Statutes: Judicial Constructions: Legislature: Presumptions. When the Nebraska Supreme Court has construed a statute in a certain manner and that construction has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's construction.
The State filed a complaint against David Schanaman in county court, charging him with third degree domestic assault. That same day, the court arraigned Schanaman and accepted his no contest plea. Two weeks later, and before sentencing, Schanaman moved to withdraw his plea. He argued that he had not received the complaint 24 hours before being asked to plead, as required by Neb.Rev.Stat. § 29–1802 (Reissue 2008), which he contended applied to complaints in county court. The court denied his motion, and the district court affirmed. Because § 29–1802 applies to prosecutions by indictment or information and not complaints in county court, failure to comply with it was not a “fair and just reason” for Schanaman to withdraw his plea. As such, the county court did not abuse its discretion in denying his motion. We affirm.
The parties do not dispute the facts. On December 27, 2011, the State filed a complaint against Schanaman charging him with third degree domestic assault. That same day, Schanaman appeared before the court without counsel. After the prosecutor read the charges, the court then explained to Schanaman the nature of the charges and the possible penalties involved, and then reviewed Schanaman's rights. This review covered his rights to counsel, to speedy trial, to confront and cross-examine the State's witnesses, to present evidence in his defense, to remain silent, to testify, and to appeal.
After Schanaman expressly waived his right to counsel, the court explained the different types of pleas. The court then told Schanaman that if he entered a not guilty plea, the court would schedule the case for further proceedings, including a trial. But if Schanaman entered a guilty or no contest plea, his plea would waive the majority of his rights. The court then asked for his plea, and Schanaman pleaded no contest. The court questioned him about his plea, asking whether anyone had made any promises, threats, or inducements which prompted his plea, and whether his plea was voluntary. Schanaman answered that his plea was voluntary and not the result of anything improper; as reason for his plea, he explained that he “just want[ed] to make peace with this.” Based on his plea and the accompanying factual basis, the court accepted his plea and found Schanaman guilty.
On January 10, 2012, after obtaining an attorney, Schanaman moved to withdraw his plea. Schanaman argued that § 29–1802 required that he have a copy of the complaint 24 hours before being asked to plead, which did not happen. Schanaman then argued that he had two other matters pending in the county—another criminal matter and a divorce—and that the State would not be substantially prejudiced, if at all, by his withdrawing his plea. The State argued that § 29–1802 did not apply and that Schanaman had not shown a fair and just reason for withdrawing his plea. The court agreed with the State, emphasizing the colloquy outlined above, and denied Schanaman's motion.
The district court affirmed. The court determined that § 29–1802 did not apply, from its plain language, to misdemeanors or county courts. The court determined that, from the record, Schanaman “entered his plea voluntarily, intelligently and not as a result of improper promises, threats or inducements.” The district court found no basis for withdrawing the plea, other than that Schanaman “apparently thought better of his plea after speaking with counsel.” That being insufficient, the court found no abuse of discretion and affirmed the county court's order.
Schanaman assigns, restated, that the district court erred in concluding that (1) § 29–1802 did not apply to a misdemeanor complaint in county court and (2) the county court did not abuse its discretion in denying Schanaman's motion to withdraw his plea.
The right to withdraw a plea previously entered is not absolute. And, in the absence of an abuse of discretion, refusal to allow a defendant's withdrawal of a plea will not be disturbed on appeal.1
The county court refused to allow Schanaman to withdraw his plea. When a defendant moves to withdraw his or her plea before sentencing, a court, in its discretion, may grant the motion for any fair and just reason, if such withdrawal would not substantially prejudice the prosecution.2 Schanaman argues that he gave a “fair and just reason” to withdraw his plea and that the county court abused its discretion in denying his motion.
Specifically, Schanaman argues that he was not served with the complaint 24 hours before being asked to plead. Section 29–1802 requires a defendant to be served with the indictment 24 hours before that defendant is asked to plead. Schanaman argues that this 24–hour requirement applies to complaints in county court. Schanaman also argues that he had other cases—another criminal matter and a divorce—pending in the same county and that the State would not be substantially prejudiced, if at all, by his withdrawing his plea. We note that the latter arguments relate to the substantial prejudice issue, which is separate from whether Schanaman presented a “fair and just reason” to withdraw his plea.3 The sole basis for his motion to withdraw his plea is his interpretation of § 29–1802.
But if § 29–1802 does not apply to complaints in county court, then the failure to comply with it cannot be a fair and just reason for Schanaman to withdraw his plea. We set § 29–1802 out in full:
The clerk of the district court shall, upon the filing of any indictment with him, and after the person indicted is in custody or let to bail, cause the same to be entered of record on the journal of the court; and in case of the loss of the original, such record or a certified copy thereof shall be used in place thereof upon the trial of the cause. Within twenty-four hours after the filing of an indictment for felony, and in every other case on request, the clerk shall make and deliver to the sheriff, the defendant or his counsel a copy of the indictment, and the sheriff on receiving such copy shall serve the same upon the defendant. No one shall be, without his assent, arraigned or called on to answer to any indictment until one day shall have elapsed, after receiving in person or by counsel, or having an opportunity to receive a copy of such indictment as aforesaid.
We give statutory language its plain and ordinary meaning. 4 We agree with the district court that, from a plain reading of § 29–1802, it does not apply to complaints in county court. Section 29–1802 specifically references procedure in felony cases (which the county court cannot try 5), and it speaks only of “indictments,” rather than “complaints.” And although Neb.Rev.Stat. § 29–1604 (Reissue 2008) specifically extends indictment procedure to informations, there is no such provision extending indictment procedure to complaints. We also note that Neb.Rev.Stat. § 29–404 (Cum.Supp.2012), which deals with filing complaints in county court, does not impose any requirements similar to § 29–1802 or reference it in any way.
But Schanaman argues that § 29–1802 cannot be read in isolation. He argues that Neb.Rev.Stat. § 29–424 (Reissue 2008), which provides that a complaint must be filed in citation cases 24 hours before the defendant is set to appear in county court, supports extending the 24–hour requirement of § 29–1802 to complaints in county court. We find this unpersuasive. Section 29–424 shows that the Legislature understood how to create a 24–hour waiting period for situations other than citations, if it wished to do so. But it did not.
Schanaman also argues that Neb.Rev.Stat. § 25–2701 (Cum.Supp.2012) extends § 29–1802 to complaints in county court. Section 25–2701 provides, in relevant part:
All provisions in the codes of criminal and civil procedure governing actions and proceedings in the district court not in conflict with statutes specifically governing procedure in county courts and related to matters for which no specific provisions have been made for county courts shall govern and apply to all actions and proceedings in the county court.
Schanaman argues that § 29–1802 governs an action or proceeding in district court, that it does not conflict with statutes specifically governing county court procedure, and that it is related to matters for which no specific provisions have been made for county courts. But while § 29–1802 in that sense “applies” to county courts, § 29–1802's specific language does not apply to complaints. We will not...
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