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07/05/94 STATE NEBRASKA v. ANTONIO ESTRADA

July 5, 1994

STATE OF NEBRASKA, APPELLEE,
v.
ANTONIO ESTRADA, APPELLANT.



Appeal from the District Court for Lincoln County: John P. Murphy, Judge.

Sievers, Chief Judge, and Connolly and Hannon, Judges.

SYLLABUS BY THE COURT

1. Statutes: Legislature: Sentences. Where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before the final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise.

2. : Restitution. A restitution order by a court pursuant to Neb. Rev. Stat. § 29-2280 (Cum. Supp. 1992) is a criminal penalty imposed as punishment for the crime.

3. Pleas: Restitution. The failure to inform a defendant of the possibility of restitution renders the entry of a plea of guilty involuntary and unintelligent in that regard and consequently prevents the imposition of an order of restitution.

4. Pleas: Waiver. A voluntary guilty plea waives every defense to the charge, whether the defense is procedural, statutory, or constitutional. The only apparent exceptions to this rule are the defenses that the information, indictment, or complaint is insufficient to charge an offense and that the guilty plea was the result of ineffective assistance of counsel. If a defendant's plea was understandingly and voluntarily made, he has waived his other alleged defenses.

5. Sentences: Appeal and Error. A sentence within statutory limits will not be disturbed upon appeal absent an abuse of discretion.

6. Sentences. It is within the district court's discretion to impose consecutive rather than concurrent sentences for separate crimes.

The opinion of the court was delivered by: Sievers

SIEVERS, Chief Judge.

As part of a plea agreement, Antonio Estrada pled guilty to manslaughter, in violation of Neb. Rev. Stat. § 28-305 (Reissue 1989), and first degree assault, in violation of Neb. Rev. Stat. § 28-308 (Reissue 1989), both Class III felonies.

After his plea of guilty was accepted, Estrada was sentenced on October 20, 1993, to a term of incarceration of not less than 6 2/3 nor more than 20 years for each count, sentences to be served consecutively, with credit given for 405 days already served. Estrada was also sentenced to solitary confinement on September 1, July 27, May 23, and November 2, of each year. Finally, Estrada was ordered to pay restitution to the victim's parents, jointly and severally with the two other defendants, in the amount of $4,653.77.

Estrada was originally charged with second degree murder, a Class IB felony, and with use of a firearm in the commission of a felony, a Class III felony. Estrada's charges were reduced to manslaughter and first degree assault after he testified on behalf of the State in the trial of State v. McHenry, Lincoln County District Court, docket 108, page 61 (docketed in the Nebraska Supreme Court as case No. S-93-1020). At the plea hearing held on September 16, 1993, the district court used Estrada's testimony from this trial as the factual basis for his guilty plea.

In the McHenry trial, Estrada testified that he was a transient and that he had arrived in North Platte, Nebraska, in July 1992. Estrada, along with a group of other transients, including Darrin McHenry and Frank Ladig, began drinking together under a bridge by the river. The victim, Richard Sterkel, joined the group, and the drinking continued for several days. At some point, McHenry, Ladig, and Estrada formulated a plan to rob Sterkel. At the appointed time, McHenry, Ladig, and Estrada began beating Sterkel and asking for his money. When they found out that Sterkel did not have any money, the men began beating him "really bad then," including punching and kicking him. Estrada testified that after they had beaten Sterkel for some time, Ladig ...


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