State v. Wilkinson
| Decision Date | 17 June 2016 |
| Docket Number | No. S–15–1002.,S–15–1002. |
| Citation | 293 Neb. 876,881 N.W.2d 850 |
| Parties | State of Nebraska, appellee, v. Byron Wilkinson, Jr., appellant. |
| Court | Nebraska Supreme Court |
Thomas M. Sonntag, of Sonntag, Goodwin & Leef, P.C., Sidney, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Byron Wilkinson, Jr., appeals from the district court's order affirming his conviction and sentence for obstructing government operations in violation of Neb. Rev. Stat. § 28–901 (Reissue 2008). The State alleges that Wilkinson interfered with the prosecution of a city employee in order to prevent that employee from being fired. Wilkinson pleaded no contest, and the county court sentenced him to 30 days in jail, plus court costs. Wilkinson appealed, and the district court affirmed. Wilkinson appealed again, and we moved the case pursuant to our power to regulate our docket and that of the Nebraska Court of Appeals. We now affirm Wilkinson's conviction and sentence.
According to the factual basis provided by the State below, on January 29, 2014, police in Sidney, Nebraska, received a telephone call from a woman complaining that a man had been standing outside her bedroom window observing her as she wore only underwear. She believed the man was her ex-boyfriend, John Hehnke, the public works director for Sidney. Officer Tim Craig responded to the call and found partial shoe-prints outside the window. Craig went to Hehnke's residence, where, after questioning, Hehnke admitted to looking into the woman's window. Craig issued Hehnke a citation for disturbing the peace, which Hehnke signed.
Under Neb. Rev. Stat. § 29–424 (Reissue 2008), “[a]s soon as practicable, the copy [of a citation that is] signed by the person cited shall be delivered to the prosecuting attorney.” But before Hehnke's citation could be delivered to the Cheyenne County Attorney, Wilkinson, who was the chief of the Sidney Police Department, pulled it from the packet of citations to be delivered.
When Craig asked about the missing citation, Wilkinson replied with the following e-mail:
The record contains no indication of what type of administrative repercussions Hehnke may have faced in lieu of formal prosecution. The State filed its initial complaint on April 13, 2015, more than 14 months after the citation against Hehnke was first issued. Wilkinson had apparently retained possession of the citation until that time.
Before the county court, Wilkinson stated that Hehnke Wilkinson had previously stated in an interview with law enforcement that he viewed the citation as “ ‘a misdemeanor, chicken-shit disturbing the peace ticket that [Wilkinson] helped keep it from becoming exposed to someone who was after him.’ ”
Wilkinson initially pleaded not guilty, but then changed his plea to no contest. Wilkinson never moved to quash the amended complaint, which mostly mirrored the language of § 28–901. The county court found Wilkinson guilty, sentenced him to 30 days in county jail, and ordered him to pay $55.48 in court costs. Wilkinson appealed, and the district court affirmed. He appealed again, and we moved the case pursuant to our power to regulate our docket and that of the Court of Appeals.
Wilkinson assigns that the district court erred by (1) affirming the county court's finding that there was a sufficient factual basis to support the conviction, (2) finding that the amended complaint was adequate, and (3) finding that the sentence imposed was not excessive.
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.1
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.2
An information that was unchallenged in the trial court must be held sufficient on appeal unless it is so defective that by no construction can it be said to charge the offense for which the accused was convicted.3
An appellate court will not disturb a sentence imposed within the statutory limits unless the trial court abused its discretion.4
In Wilkinson's first assignment of error, he argues that the county court erred by accepting his no contest plea, because it was not supported by a sufficient factual basis. Wilkinson asks the court to rule that the power of “immediate superintendence of the police,” conferred upon a chief of police by Neb. Rev. Stat. § 16–323 (Reissue 2012), authorized him to choose, for political reasons, not to forward citations to the county attorney's office. We do not find that a chief of police has such authority under the facts of this case.
A plea of no contest is equivalent to a plea of guilty.5 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.6 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.7 A sufficient factual basis is a requirement for finding that a plea was entered into understandingly and voluntarily.8 Therefore, Wilkinson has not waived his challenge to the factual basis.
Therefore, as relevant to the State's amended complaint, we must determine whether Wilkinson's act of removing Hehnke's citation was (1) an intentional act (2) obstructing, impairing, or perverting the administration of law or governmental function (3) by either physical force or obstacle, breach of an official duty, or any other unlawful act. Wilkinson appears to take issue with each of these three elements on appeal.
We first take up Wilkinson's argument as to the third element—the manner of act required—because his appeal focuses primarily on this point. The State asserts that Wilkinson breached an official duty by preventing the delivery of Hehnke's citation to the county attorney as required by § 29–424. Section 29–424, which sets forth procedures for issuing citations, states in relevant part, “As soon as practicable, the copy [of a citation that is] signed by the person cited shall be delivered to the prosecuting attorney.”
Wilkinson asserts that his act was not a breach of § 29–424, because, as chief of police, he had broad discretion over all operations of the Sidney Police Department. He essentially argues that because police have a duty to “ ‘preserve the public peace and to protect the lives and property of the citizens of the public in general,’ ”10 the term “as soon as practicable” permits the chief of police to halt the delivery of any citation for any reason. But he cites only § 16–323 for this proposition, which statute does not authorize a chief of police to do so. Reading “immediate superintendence” in this manner is simply untenable. When questioned during oral arguments about from whence this power stems, Wilkinson was unable to identify any other source in law. Wilkinson asserts that a chief of police must have the discretion to prevent delivery of citations in order to guard citizens from abuses by officers who issue those citations.
On these facts, we disagree. We note that nothing in the record suggests that Craig was harassing or abusing Hehnke. To the contrary, Hehnke admitted committing the violation and was eventually prosecuted. Further, to the extent that a chief of police may have some discretion over the issuing of citations—a matter we decline to decide—we are certain that the facts of this case do not fall within the scope of that theoretical discretion....
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...court will not disturb a sentence imposed within the statutory limits unless the trial court abused its discretion. State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).V. ANALYSIS1. ADMISSION OF NONEXPERT TESTIMONY Chavez asserts that the district court erred in overruling his objection......
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...State v. Fox , supra note 3.8 Indiana v. Edwards , 554 U.S. 164, 177, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008).9 State v. Wilkinson , 293 Neb. 876, 881 N.W.2d 850 (2016).10 See State v. Ortega , 290 Neb. 172, 859 N.W.2d 305 (2015).11 State v. Wilkinson , supra note 9.12 Id.13 See 21 Am. Ju......
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