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State v. Kirby

Court of Appeals of Nebraska

August 29, 2017

State of Nebraska, appellee,
Ramon M. Kirby, appellant.

         1. Pleas: Courts. A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing.

         2. 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.

         3. 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.

         4. 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 court.

         5. 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.

         6. 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.

         7. 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

          [25 Neb.App. 11]

         law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime.

         8. Bonds: Appeal and Error. A pretrial bond and an appeal bond after conviction are treated differently.

         9. Bonds. Neb. Rev. Stat. § 29-2302 (Reissue 2016) requires that a reasonable bond be set following a misdemeanor conviction in district court.

         10.Bonds: Appeal and Error. Reasonableness of the appeal bond amount is determined under the general discretion of the district court.

         11. _:. 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.

         Appeal from the District Court for Lancaster County: John A. Colborn, Judge. Affirmed.

          Joseph 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.

          Moore, Chief Judge, and Riedmann and Bishop, Judges.

          Bishop, Judge.

         Ramon 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 affirm.


         On July 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.

         In 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 County, Nebraska.
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.

         The 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.

         Kirby 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.

         In June 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.

         On 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 ...

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