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State v. Ettleman

Supreme Court of Nebraska

July 12, 2019

State of Nebraska, appellee,
v.
Tammy J. Ettleman, appellant.

         1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court's determination only in the case of an abuse of discretion.

         2. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         3. Criminal Law: Intent: Minors. The Class IIIA felony of child abuse under Neb. Rev. Stat. § 28-707(4) (Reissue 2016) is required to have been committed knowingly and intentionally.

         4. Criminal Law: Intent: Words and Phrases. Under Neb. Rev. Stat. § 28-201 (Reissue 2016), one commits criminal attempt if he or she intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he or she believes them to be.

         5. Pleas. Requiring a factual basis ensures that a defendant actually committed an offense at least as serious as the one to which he or she is willing to plead guilty.

         6. Double Jeopardy: Pleas: Appeal and Error. The Double Jeopardy Clause is not violated when a criminal defendant pleads guilty while reserving his or her right to appeal, prevails on appeal, and consequently must either replead, endure further pretrial proceedings, or go to trial.

         7. Pleas: Appeal and Error. The remedy for an inadequate factual basis is an order vacating the guilty plea and restoring both parties to their positions prior to the trial court's acceptance of the plea. If an appellate court determines that a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and the defendant allowed to replead or to proceed to trial.

         [303 Neb. 582] 8. Pleas. Where it is possible to establish a factual basis to the charges to which the defendant had entered a plea, the State should be given the opportunity to establish a factual basis.

          Petition for further review from the Court of Appeals. Riedmann, Bishop, and Welch, Judges, on appeal thereto from the District Court for Saunders County, Mary C. Gilbride, Judge.

          Thomas J. Klein, Saunders County Public Defender, for appellant.

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

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          MILLER-LERMAN, J.

         NATURE OF CASE

         We granted the State's petition for further review of the decision of the Nebraska Court of Appeals which reversed Tammy J. Ettleman's plea-based conviction for felony child abuse. The Court of Appeals concluded that the factual basis presented by the State was not sufficient to support Ettleman's no contest plea and therefore "reverse[d] the order of the district court [for Saunders County] which accepted that no contest plea and . . . vacate[d] Ettleman's conviction for felony child abuse." State v. Ettleman, No. A-17-782, 2018 WL 3902173 at *5 (Neb.App. Aug. 14, 2018) (selected for posting to court website). Ettleman had also pled no contest to a count of attempted possession of a controlled substance, and the Court of Appeals affirmed that plea-based conviction. However, the Court of Appeals reasoned that "because the district court ordered only one sentence for both convictions," it must vacate the sentence and remand the matter for [303 Neb. 583] resentencing on Ettleman's conviction for attempted possession of a controlled substance. Id. at *1.

         The State claims on further review that the Court of Appeals erred both when it found there was not a sufficient factual basis for the plea to felony child abuse and when it "suggest[ed]" that Ettleman could not be subject to retrial on the child abuse charge upon remand.

         We conclude that the Court of Appeals did not err when it found that there was not a sufficient factual basis for the felony child abuse plea. However, we determine that the Court of Appeals erred in its disposition, because it focused only on the conviction for felony child abuse rather than setting forth a remedy focused on the entire plea agreement. We therefore affirm in part and in part reverse the decision of the Court of Appeals, and we remand the cause to the Court of Appeals with directions as set forth herein.

         STATEMENT OF FACTS

         In its memorandum opinion, the Court of Appeals set forth the facts of this case for which we find support in the record as follows:

On January 17, 2017, the State filed an information charging Ettleman with: count I, delivery of a controlled substance, a Class II felony, pursuant to Neb. Rev. Stat. § 28-416 (Reissue 2016); count II, aiding and abetting delivery of a controlled substance, a Class II felony, pursuant to § 28-416 and Neb. Rev. Stat. § 28-206 (Reissue 2016); and count III, child abuse, a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-707 (Reissue 2016).
On March 27, 2017, pursuant to a plea agreement, Ettleman pled "no contest" to an amended count I (now attempted possession of a controlled substance, a Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-201 (Reissue 2016)) and count III (child abuse); the State agreed to dismiss count II (aiding and abetting delivery of [303 Neb. 584] a controlled substance). The State provided the following factual basis:
"On November 28, 2016, officers with III Corps Drug Task Force and Cedar Bluffs Police Department executed a search warrant on the residence of Tanya Brainard, Cedar Bluffs, Saunders County. In the course of that search warrant, the investigation discovered that the defendant, Tammy Ettleman, had been providing narcotics to Tanya Brainard and that a significant balance was remaining.
"In the course of the investigation, [Ettleman] agreed to - arrived at Tanya Brainard's home a few blocks away in exchange - to receive some of the past due account, as well as sell some new pills, that being oxycodone. [Ettleman] indicated that she had her 11-year-old son, identified by initials CE, born in 2005, with her and that he was still in his PJs.
"While the officers were still present, [Ettleman] arrived at the Brainard residence with her son, CE, and for the purpose of the plea agreement, did attempt to possess oxycodone, a Schedule II narcotic substance. These events [occurred] in Saunders County." When asked if there were any comments to the factual basis, Ettleman's attorney stated, "Would address those at sentencing, Your Honor." The district court proceeded to find the "factual basis sufficient to convict [Ettleman] on her no contest pleas." The court found the pleas were entered into knowingly and voluntarily, and found Ettleman guilty as charged in count I as amended and count III. The matter was then scheduled for sentencing.
At the sentencing hearing, Ettleman said she realized she made mistakes, "but [she] would never put [her] son in danger." She acknowledged giving Brainard "a couple pills here and there, which [she] should not have done, and that was a huge mistake." She said she was not "this big drug dealer," rather, she felt sorry for Brainard. She [303 Neb. 585] "did not take [her son] there trying to put him into any danger whatsoever. [She] would never do that." She went on to say, "I love my son very much, and, you know, I went in there, asked if [Brainard] was there and went out. That was all that it was. It was not trying to put him in danger at all, you know." She said she was "taken aback" when she came in "for the status hearing" after being told it was going to be a misdemeanor, "and then they threw this felony child abuse in on me." The court proceeded to order one sentence of 24 months' probation for both convictions (without any noted separation or apportionment of the sentence between the two convictions), with various ...

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