State v. Youngstrom

• Decision Date: 11 January 1974
• Docket Number: No. 39109,39109
• Citation: 214 N.W.2d 27,191 Neb. 112
• Parties: STATE of Nebraska, Appellee, v. Martyn Charles YOUNGSTROM, Appellant.
• Court: Nebraska Supreme Court

Page 27

214 N.W.2d 27

191 Neb. 112

STATE of Nebraska, Appellee, v. Martyn Charles YOUNGSTROM, Appellant.

No. 39109.

Supreme Court of Nebraska.

Jan. 11, 1974.

Syllabus by the Court

1. Where an information charges former convictions which give rise to enhanced punishment under the habitual criminal statute, a plea of nolo contendere or guilty to the information confesses the prior convictions and no hearing for proof of the convictions is required under section 29--2221(2), R.S.Supp., 1972.

2. The fact that the previous offenses at the time of their commission and at the time of conviction thereof were felonies and have since been by statute reduced to misdemeanors will not preclude their use under the habitual criminal statute to enhance punishment.

3. A finding of guilty will not be set aside for errors which are not prejudicial to the substantial rights of the defendant.

T. Clement Gaughan, Public Defender, Paul M. Conley, Deputy Public Defender, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Besty G. Berger, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

CLINTON, Justice.

The defendant was charged in the District Court for Lancaster County with the felony offense of having possession of a forged instrument with intent to utter. The information further alleged that the defendant had been twice previously convicted of felony charges and had been sentenced thereon, and was therefore a habitual criminal. The defendant entered a plea of nolo contendere and a sentence of 10 to 12 years was imposed. He appeals. We affirm.

The defendant assigns as error and contends: (1) He was entitled to a separate hearing to determine whether he had been twice previously convicted and sentenced on felony charges. (2) The acts constituting the felonies of which he was convicted have since the convictions and previous to sentencing in this case been classified by the Legislature as misdemeanors and therefore the prior felony convictions should not be used to enhance punishment under the habitual criminal statute. (3) The trial court erred in not permitting him to withdraw his motion to vacate the sentence imposed on April 12, 1973, and to resentence.

We will treat the assignments in the order in which we have listed them.

The bill of exceptions discloses the defendant has at all times in these proceedings been represented by counsel. He first pled not guilty to a charge of possession of a forged $75 check with the intent to utter. Thereafter in open court with the defendant and his counsel present, the State was granted leave to and did amend the information to allege in addition to the forgery charge: '. . . that on or about the 7th day of April, 1967, the said defendant, Martyn C. Youngstrom, was convicted of a crime, sentenced and committed to prison in the State of Nebraska for a term of not less than one year; that on or about the 18th day of November, 1969, the said defendant, Martyn C. Youngstrom, was convicted of a crime, sentenced and committed to prison in the State of Nebraska for a term of not less than one year; by which such convictions said defendant is deemed to be a habitual criminal.' Thereafter, on the same day the amendment was allowed, the defendant withdrew his previous plea of not guilty. The record shows that previous to this withdrawal the defendant was advised as follows: '. . . do you understand in the event you enter a plea of guilty to this charge with the provision for the habitual criminal as included in the amended information that you will not be entitled to a trial by jury; you will not be entitled to any trial whatever; and the further disposition will be up to the Judge of this Court alone; and the penalty provided for possession of a forged instrument, under the habitual criminal act, would mean a sentence a minimum of ten to a maximum of sixty years? Do you understand that? DEFENDANT: Yes, sir.'

It was then disclosed to the court that a plea barbain had been made, the substance of which was that the State would dismiss two other felony charges then pending against the defendant, one for burglary and one for forgery, if the defendant would plead guilty 'to the charge of possession of a forged instrument, carrying, as it does in the amended information, the provision of a habitual criminal,' and that the State would not make any recommendation to the court with regard to sentence.

The defendant acknowledged that the foregoing statement of the bargain was correct, but stated that he wanted 'to plead just no contest.' The State then indicated it had no objection to that plea.

The defendant then waived the 24-hour service of the amended information, stating 'I would like to have a copy, but waive the right of waiting.'

He was then rearraigned on the amended information which was read in its entirety, including the allegation of the previous felony convictions. He then pled, 'No contest, Your Honor.' The court, before accepting the plea, explained that it was for most purposes the equivalent of a plea of guilty and gave a detailed explanation of the effects of such a plea and what rights were waived by it. The court specifically called to the defendant's attention that the information included the habitual criminal charge which was not included in the one to which he had earlier pled not guilty. There then followed an explanation that the plea waived trial and proof. The defendant stated that he understood. There then followed a further explanation of the defendant's rights and the effect of the plea and the elicitation of facts supporting voluntariness and a factual basis for the plea of guilty. This concluded with the following:

'COURT: You still want your plea to stand; is that right, sir?

DEFENDANT: Yes, Your Honor.'

The defendant, to support his contention that despite his plea he was entitled to a hearing on and proof of the prior convictions, relies upon the following portion of section 29--2221, R.S.Supp., 1972: 'If the accused is convicted of a felony and before sentence is imposed, a hearing shall be had before the court alone as to whether such person has been previously convicted of prior felonies. The court shall fix a time for the hearing and...