Pleas: Courts. A trial court has discretion
to allow defendants to withdraw their guilty or no contest
pleas before sentencing.
Pleas: Appeal and Error. An appellate court
will not disturb the trial court's ruling on a
presentencing motion to withdraw a guilty or no contest plea
absent an abuse of discretion.
Judges: Words and Phrases. A judicial abuse
of discretion exists only when the reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying a just result in
matters submitted for disposition.
Sentences: Appeal and Error. An appellate
court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
Pleas. To support a finding that a defendant
freely, intelligently, voluntarily, and understanding entered
a guilty plea, a court must inform a defendant about (1) the
nature of the charge, (2) the right to assistance of counsel,
(3) the right to confront witnesses against the defendant,
(4) the right to a jury trial, and (5) the privilege against
self-incrimination. The record must also show a factual basis
for the plea and that the defendant knew the range of
penalties for the crime charged.
Pleas: Proof: Appeal and Error. The right to
withdraw a plea previously entered is not absolute. When a
defendant moves to withdraw his or her plea before
sentencing, a court, in its discretion, may sustain the
motion for any fair and just reason, provided that such
withdrawal would not substantially prejudice the prosecution.
The defendant has the burden to show the grounds for
withdrawal by clear and convincing evidence.
Sentences. Factors a judge should consider
in imposing a sentence include the defendant's age,
mentality, education, experience, and social and cultural
background, as well as his or her past criminal record or
conduct, motivation for the offense, nature of the offense,
and the amount of violence involved in the commission of the
Bonds: Appeal and Error. A pretrial bond and
an appeal bond after conviction are treated differently.
Bonds. Neb. Rev. Stat. § 29-2302
(Reissue 2016) requires that a reasonable bond be set
following a misdemeanor conviction in district court.
Appeal and Error. Reasonableness of the appeal bond
amount is determined under the general discretion of the
Factors to be considered in determining the reasonableness of
a defendant's appeal bond under Neb. Rev. Stat. §
29-2302 (Reissue 2016) following a misdemeanor conviction
include the atrocity of the defendant's offenses, the
probability of the defendant appearing to serve his or her
sentence following the conclusion of his or her appeal, the
defendant's prior criminal history, and the nature of
other circumstances surrounding the case.
from the District Court for Lancaster County: John A.
Colborn, Judge. Affirmed.
D. Nigro, Lancaster County Public Defender, and John C.
Jorgensen for appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman, and,
on brief, George R. Love for appellee.
Chief Judge, and Riedmann and Bishop, Judges.
M. Kirby pled no contest to two counts: (1) criminal mischief
causing a pecuniary loss between $500 and $1, 500, a Class I
misdemeanor, and (2) third degree domestic assault, a Class I
misdemeanor. The district court sentenced him to concurrent
sentences of 270 days' imprisonment on each count. Kirby
argues that the district court would not allow him to
withdraw his pleas, imposed excessive sentences, and set an
unreasonable appeal bond. For the following reasons, we
17, 2014, the State filed an information charging Kirby with
three counts: (1) criminal mischief causing [25 Neb.App. 12]
a pecuniary loss over $1, 500, a Class IV felony, pursuant to
Neb. Rev. Stat. § 28-519(1) and (2) (Reissue 2008); (2)
terroristic threats, a Class IV felony, pursuant to Neb. Rev.
Stat. § 28-311.01 (Reissue 2008); and (3) domestic
assault, third degree, a Class I misdemeanor, pursuant to
Neb. Rev. Stat. § 28-323(1) and (4) (Cum. Supp. 2014).
We note that Kirby's offenses occurred prior to August
30, 2015, the effective date of 2015 Neb. Laws, L.B. 605,
which changed the classification of certain crimes and made
certain amendments to Nebraska's sentencing laws.
December 2014, the State filed an amended information
charging Kirby with two counts: (1) criminal mischief causing
a pecuniary loss between $500 and $1, 500, a Class I
misdemeanor, pursuant to § 28-519(1) and (3); and (2)
third degree domestic assault, a Class I misdemeanor,
pursuant to § 28-323(1) and (4). Pursuant to a plea
agreement, Kirby pled "no contest" to counts 1 and
2 of the amended information. According to the factual basis
provided by the State:
[o]n September 6th, 2013, approximately 6:04 a.m., the
Lincoln Police Department received a report of a domestic
assault. They received that report from [T.G.] Officers were
dispatched to her residence . . . here in Lincoln, Lancaster
She indicated that between the hours of three o'clock
a.m. and five o'clock a.m. on September 6th, 2013, she
was assaulted by her then boyfriend, [Kirby]. She said that
she had been with [Kirby] for approximately 15 years. She
returned home and [Kirby] was already there. She indicated at
some point, while they were in the home together, he became
belligerent, so she asked him to leave. She said that [Kirby]
refused to leave the house, became physical with her.
She said that as she was walking towards the bedroom, [Kirby]
punched her in the face, forced her into the bedroom, forced
her onto the bed, and then once she was on the bed, he got on
top of her, put his knees on her chest [25 Neb.App. 13] and
put one hand around her neck and the other on her head. She
said she was unsure if her airway was ever obstructed, but
she did have significant red marks on her neck and her face
from the assault, and those were visible to the officer. She
also indicated that while he was on top of her, on the bed,
he said that he was going to kill her.
[T.G.] indicated that eventually she was able to get away
from him and she left the house, went to her daughter's
house .... She stayed there for some time before returning to
the home. . . .
Once [T.G. and her daughter] went into the home, they found
that [Kirby] had caused significant damage to some items,
there was a broken computer. Also in the bathroom, they
noticed that [Kirby] had caused some damage as well,
evidently he had plugged up the toilet or something of that
nature; turned on the water, and water had been overflowing
into the bathroom, and then that flowed down into the
basement, and they noticed that there was standing water in
the basement as a result of the running water.
There was [sic] damage estimates in excess of $3, 000. The
total restitution of damage in this case was $3, 453.60.
State also noted that as part of the plea agreement, Kirby
was to plead to the two Class I misdemeanors in the amended
petition and to pay restitution in the amount of $3, 453.60,
which he had paid. When Kirby was asked if that was his
understanding of the plea deal, Kirby responded, "Not
quite. They were supposed to reduce the charges considerably,
according to how fast I paid off the restitution, and I paid
it off rather quick . . . [a]nd, no, they did not keep their
word." Defense counsel informed the court that Kirby may
be referring to an original agreement to deal with his case
in county court, when Kirby was represented by different
counsel; current counsel's understanding was the offer
had been [25 Neb.App. 14] withdrawn and the case bound over
to district court. Kirby said he hired his current counsel
because his previous counsel "did not make the
prosecutor keep their word." After defense counsel was
allowed to confer with Kirby, Kirby confirmed to the court
that the plea agreement outlined at the hearing was the
agreement as he understood it that day and that he wanted the
court to accept that plea agreement and his no contest plea
to each charge. The district court accepted Kirby's no
contest pleas to counts 1 and 2.
failed to appear for sentencing in February 2015, and a
warrant was issued for his arrest. He was not arrested on the
warrant until April 2016.
2016, Kirby appeared before the district court for a hearing
on his motion to withdraw plea. (The motion does not appear
in our record, but the judge's notes indicate that it was
filed in April.) The district court denied the motion,
reasoning that Kirby understood the nature and terms of the
agreement at the time of his plea.
August 2, 2016, the district court sentenced Kirby to
concurrent sentences of 270 days' imprisonment on each
count, with 11 days' credit for time served. According to
the "Judges Notes" appearing in our transcript, on
August 3, the district court set an appeal bond "in the
amount of $250, 000 Reg. 10% bond with community corrections