State v. Thompson

• Decision Date: 17 July 2007
• Docket Number: No. A-06-612.,A-06-612.
• Citation: 735 N.W.2d 818,15 Neb. App. 764
• Parties: STATE of Nebraska, Appellant, v. Richard W. THOMPSON, Appellee.
• Court: Nebraska Court of Appeals

735 N.W.2d 818

15 Neb. App. 764

STATE of Nebraska, Appellant, v. Richard W. THOMPSON, Appellee.

No. A-06-612.

Court of Appeals of Nebraska.

July 17, 2007.

Jon Bruning, Attorney General, Jeffrey J. Lux, Special Assistant Attorney General, and Paul B. Schaub, Cheyenne County Attorney, for appellant.

Clarence E. Mock, of Johnson & Mock, Oakland, and Donald J.B. Miller, of Matzke, Mattoon & Miller, Sidney, for appellee.

INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.

SIEVERS, Judge.

INTRODUCTION

Richard W. Thompson pled no contest to two counts of sexual assault of a child, and the district court for Cheyenne County sentenced Thompson to 5 years' intensive supervised probation on each count, to run consecutively. The State of Nebraska appeals the sentences imposed on Thompson as excessively lenient. The first impression issue presented by this case is Thompson's claim that the State, by agreeing to "remain silent" at sentencing, has waived its right to appeal the district court's sentences as excessively lenient. We conclude that the State did not waive its right to appeal, and therefore, we address the merits of the State's contention on appeal that the sentences are excessively lenient.

FACTUAL BACKGROUND

On October 31, 2005, Thompson was charged with count I, sexual assault of a child; count II, sexual assault of a child; and count III, first degree sexual assault. Thompson was arraigned on November 8 and entered a plea of not guilty. Thereafter, a plea agreement was reached. Thompson's counsel put the plea agreement on the record, stating: "Thompson is prepared to enter a no contest plea to counts I and II, in exchange count III is going to be dismissed and at the time of sentencing the county attorney is going to remain silent." The Cheyenne County Attorney affirmed that such was the plea agreement by the simple statement, "That's right." And, upon inquiry by the court as to whether such was "your agreement," Thompson responded affirmatively on the record. Thompson pled no contest to the two counts of sexual assault of a child, a factual basis was provided on the record, and the trial court accepted the plea and scheduled the sentencing hearing. We shall discuss the details of the crimes in our discussion of the sentences in the analysis section of our opinion.

On May 23, 2006, a sentencing hearing was held. When the court asked if there was any evidence or recommendations to present, the State said that there was "no argument from the State." The State noted that this was "part of [the plea] agreement." The district court then sentenced Thompson as stated above, and the State has timely appealed.

ASSIGNMENT OF ERROR

The State contends that the district court abused its discretion by imposing excessively lenient sentences upon Thompson.

STANDARD OF REVIEW

Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion. State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.

ANALYSIS

Did State Waive Appellate Sentence Review by Agreeing to Remain Silent at Sentencing?

We begin with Thompson's assertions that the State, by complaining on appeal that his sentences were excessively lenient after agreeing to stand silent at the sentencing hearing, is in violation of the parties' plea agreement and that "[t]his Court should enforce the plea agreement between Thompson and the State by dismissing this appeal." Brief for appellee at 9.

It is well established that plea bargaining is an essential component of the administration of justice. See, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). "`[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.'" State v. Gonzalez-Faguaga, 266 Neb. at 77, 662 N.W.2d at 588, quoting Santobello v. New York, supra. There is no assertion that the prosecution did not live up to its agreement to "remain silent" at the time of sentencing. The State is given a statutory right to appeal a sentence as excessively lenient pursuant to Neb.Rev.Stat. § 29-2320 (Cum. Supp. 2006). Section 29-2320 provides that the prosecuting attorney in a felony case may appeal the sentence imposed "if such attorney reasonably believes, based on all of the facts and circumstances of the particular case, that the sentence is excessively lenient."

Our research has not revealed any Nebraska precedent addressing Thompson's argument that the State, after agreeing to remain silent at a defendant's sentencing hearing as part of a plea bargain, waives its right to appeal as excessively lenient a sentence which is within the statutory parameters. Thompson and the concurrence cite the following three cases from other jurisdictions to support the claim of waiver: Com. v. Fruehan, 384 Pa.Super. 156, 557 A.2d 1093 (1989); People v. Arriaga, 199 Mich.App. 166, 501 N.W.2d 200 (1993); and State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988). We find these cases to be distinguishable, unpersuasive, or both.

In Fruehan, the defendant entered a guilty plea under a plea bargain in which the Commonwealth of Pennsylvania (the Commonwealth) agreed to stand mute with respect to the sentence to be imposed. After the sentence was imposed, the Commonwealth petitioned the trial court to reconsider the sentence, alleging that such sentence was excessively lenient. The Fruehan court noted: "The issue of first impression in this appeal is whether the Commonwealth should be allowed to appeal the discretionary aspects of a sentence after it agreed as part of a negotiated plea agreement to stand mute with respect to the sentence to be imposed by the trial court." 384 Pa.Super. at 157, 557 A.2d at 1093. The court first observed that "the sentence imposed by the trial court is within the limits authorized by the legislature and is not illegal" and noted that "the only attack which the Commonwealth has leveled against the sentence is that it represented an abuse of the sentencing court's discretion." Id. We note that under the applicable Pennsylvania statute, the "[a]llowance of an appeal from the discretionary aspects of sentencing may be granted at the discretion of the [appellate court] where there appears to be a substantial question that an inappropriate sentence has been imposed." Id. at 158, 557 A.2d at 1093. However, in Nebraska, the State's appeal is a matter of right, whereas in Pennsylvania, the appellate court has discretion whether to even consider the appeal.

The Fruehan court further noted: "In determining whether a particular plea agreement has been breached, we look to `what the parties to this plea agreement reasonably understood to be the terms of the agreement.'" Id. at 160, 557 A.2d at 1094, quoting Paradiso v. United States, 689 F.2d 28 (2d Cir.1982). Ultimately, the Fruehan court found that "to allow the Commonwealth's appeal would be to permit it to breach its plea agreement and deprive the defendant of the benefits thereof." Id. at 157, 557 A.2d at 1093. The court specifically noted:

[W]e have no difficulty in determining that the Commonwealth's post-sentencing motion was contrary to "what the parties to [the] plea agreement reasonably understood to be the terms of the agreement." The Commonwealth had agreed to "stand mute" with respect to the sentence to be imposed; it could not consistently therewith move post-sentencing to have the [trial] court modify its sentence by changing a sentence of probation to a sentence of incarceration. That the request was made post-sentencing does not minimize the breach. A sentence is not final until the right of review has been exhausted or waived. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982).

The Commonwealth cannot consistently with its agreement seek to effect a harsher sentence by using the back door of post-sentence review. To permit the Commonwealth in the instant case to importune the sentencing court post-sentencing to increase the sentence which it imposed would be to permit the Commonwealth to deprive the defendant-appellee of his bargain. . . . The Commonwealth agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement.

Com. v. Fruehan, 384 Pa.Super. 156, 160-61, 557 A.2d 1093, 1095 (1989). Thus, in Fruehan, the discretionary appeal that the prosecution sought was "disallowed." Id. at 161, 557 A.2d at 1095. In Fruehan, the Commonwealth was found to have breached the plea agreement by a postsentence request of the sentencing court to increase the sentence. No such breach at the trial court level is involved in the present case, and making such a request of the sentencing court is a fundamentally different matter than the exercise of the State's statutorily granted right to have an appellate court — a different and higher court — review a sentence for an abuse of discretion. As a result, we find Fruehan to be distinguishable.

In People v. Arriaga, 199 Mich.App. 166, 501 N.W.2d 200 (1993), the defendant pled guilty pursuant to a plea agreement. As part of the agreement, the prosecution agreed to take no position on the defendant's request for a sentence below the mandatory minimum. However, at the sentencing hearing, the prosecution argued that there were no substantial and compelling reasons for the court to depart from the...