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05/01/75 STATE NEBRASKA v. LEONARD J. SVITAK

May 1, 1975

STATE OF NEBRASKA, APPELLEE,
v.
LEONARD J. SVITAK, APPELLANT



Appeal from the District Court for Lancaster County: William D. Blue, Judge.

White, C. J., Spencer, Boslaugh, McCown, Newton, Clinton, and Brodkey, JJ.

SYLLABUS BY THE COURT

1. : Waiver. A written waiver of jury trial signed by the defendant is sufficient to constitute a valid waiver of a criminal defendant's right to a jury trial.

2. : Guilty Plea. The standard for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.

3. : Sentences. Unless an abuse of discretion appears, a sentence within statutory limits will not be disturbed on appeal.

The opinion of the court was delivered by: Spencer

Defendant prosecutes this appeal from a sentence of life imprisonment for second-degree murder on a plea of guilty. Defendant contends the trial court erred in permitting him to waive his right to a jury trial and later to withdraw his plea of not guilty by reason of insanity and enter a plea of guilty to second-degree murder. Defendant also attacks the severity of his sentence. We affirm.

On March 5, 1974, the defendant was charged with second-degree murder. Defendant admits that he fired three shots from a .22-caliber rifle which caused the death of his ex-wife. The preliminary hearing was held on April 15, 1974, and defendant was bound over to the District Court for trial. His arraignment was continued for several weeks for the purpose of conducting psychiatric, psychological, and neurological examinations. On June 26, 1974, defendant entered a plea of not guilty by reason of insanity. Thereafter defendant filed a motion for waiver of jury trial, which motion was sustained on July 29, 1974. On August 27, 1974, defendant was allowed to withdraw his prior pleas and to enter a plea of guilty to second-degree murder. After an extensive presentence investigation, the trial court sentenced defendant to life imprisonment in the Nebraska Penal and Correctional Complex.

A review of the record convinces us that this appeal is patently frivolous. At all stages of the proceeding defendant was adequately represented by competent private counsel who took extreme pains to explain his rights and to be sure he understood the proceedings. During the course of their preparation for trial defendant was examined by three psychiatrists, a psychologist, and a neurologist, none of whom found him to be insane.

The following is from the report of one of the court-appointed psychiatrists to the Judge, who permitted defendant to withdraw his plea of not guilty by reason of insanity and to enter a guilty plea: "In my examination I addressed myself to the two psychiatric legal questions involved; one, his mental capacity to stand trial and two his mental capacity at the time of the crime.

"Firstly as to his mental capacity to stand trial. The following are some of the considerations I used in making my Conclusions. Is the patient free of any serious mental illness? Does he understand he is being charged in the death of his ex-wife? Does he understand the role of the Judge, jury, prosecuting attorney and witnesses? Can he relate in a significant way with his own attorney? Does he know he can call witnesses in his behalf; that thru his attorney he can challenge witnesses? Does he understand that if he is found guilty he can be punished? Will his behavior be disturbing to the trial? Can he control his behavior?

"To all the above considerations I would say yes and therefore, in my psychiatric opinion he has the mental capacity to stand trial.

"As to his mental responsibility at the time of the crime, I have used the McNaughton rules since these are the ...


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