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State v. Dye

Supreme Court of Nebraska

October 23, 2015

STATE OF NEBRASKA, APPELLEE,
v.
BRANDON DYE, APPELLANT

Appeal from the District Court for Hall County: TERESA K. LUTHER, Judge.

Mark Porto, of Shamberg, Wolf, McDermott & Depue, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

Brandon Dye, Pro se.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ., and MOORE, Judge.

OPINION

Page 629

[291 Neb. 990] Miller-Lerman, J.

NATURE OF CASE

Brandon Dye was convicted by a jury of six crimes: one felony count of robbery, two felony counts of first degree false imprisonment, one misdemeanor count of third degree assault, one misdemeanor count of third degree sexual assault, and one misdemeanor count of carrying a concealed

Page 630

weapon. After trial, the parties entered into a sentencing agreement pursuant to which the State recommended, inter alia, that a sentence of imprisonment for 12 to 13 years for the robbery conviction be imposed and that the other sentences be served concurrently to such sentence. The district court for Hall County imposed sentences in conformity with the recommendation. Dye appeals. The State argues that this appeal should be dismissed because, as part of the sentencing agreement, Dye waived his right to appeal. Dye argues that the waiver is unenforceable. We conclude that the waiver is enforceable, and we therefore dismiss this appeal.

STATEMENT OF FACTS

The incident giving rise to the charges against Dye occurred on the afternoon of November 7, 2013, when Dye kicked in the door of a hotel room in Grand Island, Nebraska, that was [291 Neb. 991] occupied by three sisters. Dye entered the hotel room because he was searching for a relative of the sisters for the purpose of retrieving a debt the relative owed to him. While in the hotel room, Dye grabbed and bent the arm of one of the sisters and took a cell phone from her and he attempted to take cell phones from the other sisters. Dye also made a number of sexually suggestive comments to the sisters, which they interpreted as offering money in exchange for sexual favors, and he touched one of the sisters on the backside. Based on these actions, the State charged Dye with robbery, two counts of first degree false imprisonment, third degree assault, third degree sexual assault, and carrying a concealed weapon. The State also alleged that Dye was a habitual criminal.

Dye's defense at trial was based primarily on his assertion that at the time of the incident, he was temporarily insane as the result of having involuntarily consumed a drug that another person put in his drink. Dye admitted that shortly before the incident, he had been drinking alcohol and smoking marijuana with his sister and her boyfriend. He testified that he had consumed a similar amount of alcohol and marijuana on other occasions and that it had not caused him problems but that on this occasion, he temporarily lost consciousness. Although he recalled a taxi arriving at his house shortly before the incident occurred, he did not recall anything further until he regained consciousness when police arrived at the scene of the incident. He testified that even at that point, he did not feel fully conscious.

As part of his defense, Dye made an offer of proof of testimony by his girlfriend, Ann Chapman, regarding statements made to her by Chad Willis, the boyfriend of Dye's sister. In a hearing on the admissibility of her testimony, Chapman testified that Willis had told her that on the day of the incident, he had put something into Dye's drink without Dye's knowledge. Chapman testified that Willis said that he had " drugged" Dye's drink with a substance he identified as " 'E.'" Dye argued that Chapman's testimony regarding Willis' [291 Neb. 992] statements should be admitted as an exception to the hearsay rule pursuant to Neb. Rev. Stat. § 27-804(2)(c) (Reissue 2008) because it was a statement tending to expose the declarant to criminal liability. The court found that Willis, who was incarcerated, was unavailable as a witness; however, the court concluded that the hearsay statements were not admissible under § 27-804(2)(c), because the circumstances did not demonstrate the trustworthiness of the statements.

The jury found Dye guilty of all counts. When the matter came for sentencing, the State presented evidence to support its allegation that Dye was a habitual criminal.

Page 631

At the sentencing hearing, the court noted that a plea agreement had been offered to Dye prior to the trial and that a sentencing agreement had been offered to Dye after the convictions but prior to the sentencing hearing. The court expressed concern that Dye did not understand the potential benefit of the agreements, because he did not understand the constraints that would be placed on the court's sentencing discretion if it found Dye to be a habitual criminal, specifically, that the court would be required to sentence him to imprisonment for a mandatory minimum of 10 years and that he would not be eligible for parole during that 10-year period. The court therefore continued the sentencing to a later date in order to give Dye an opportunity to review his options with his attorney.

At the next sentencing hearing, the court was informed that the State and Dye had reached an agreement as to a sentencing recommendation. The sentencing agreement required the State to withdraw the habitual criminal allegation, and, as part of the ...


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