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
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.
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
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.
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
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.
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.
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,
J. Klein, Saunders County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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.
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.
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.
memorandum opinion, the Court of Appeals set forth the facts
of this case for which we find support in the record as
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
"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