State v. Ettleman , 303 Neb. 581 ( 2019 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. ETTLEMAN
Cite as 303 Neb. 581
State of Nebraska, appellee, v.
Tammy J. Ettleman, appellant.
___ N.W.2d ___
Filed July 12, 2019. No. S-17-782.
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 mat-
ters 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 com-
mitted 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 fac-
tual 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.
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STATE v. ETTLEMAN
Cite as 303 Neb. 581
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,
R iedmann, Bishop, and Welch, Judges, on appeal thereto from
the District Court for Saunders County, M ary C. Gilbride,
Judge. Judgment of Court of Appeals affirmed in part and in
part reversed, and cause remanded with directions.
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 convic-
tion. However, the Court of Appeals reasoned that “because
the district court ordered only one sentence for both convic-
tions,” it must vacate the sentence and remand the matter for
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STATE v. ETTLEMAN
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resentencing on Ettleman’s conviction for attempted posses-
sion 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, pur-
suant 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
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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 nar-
cotics 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 pos-
sess 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
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“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 convic-
tions), with various conditions, including serving 90 days
in jail (to be served in three waivable 30-day terms).
The court’s written order of probation was filed June 26,
2017. Ettleman timely appealed.
State v. Ettleman, No. A-17-782, 2018 WL 3902173 at *1-2
(Neb. App. Aug. 14, 2018) (selected for posting to court web-
site). To clarify the sentencing, we note that in its order, the
district court set forth the length and terms of probation as
being applicable to both convictions but it stated that the jail
time was specifically applicable to the conviction for attempted
possession of a controlled substance.
Ettleman claimed on appeal to the Court of Appeals that the
district court erred when it found that the State had presented
a sufficient factual basis to support her plea of no contest to
felony child abuse. We have long held that a factual basis is
required to show that a plea was made understandingly and
knowingly, see State v. Irish, 223 Neb. 814, 394 N.W.2d 879
(1986), and that a challenge to the understandingly and vol-
untary nature of the plea can be made on appeal, see State
v. Mason, 187 Neb. 675, 193 N.W.2d 576 (1972). The Court
of Appeals found merit to Ettleman’s claim that the factual
basis was insufficient. The Court of Appeals first rejected
the State’s argument that Ettleman had waived a challenge to
the factual basis when she did not object to the factual basis
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in the district court. The Court of Appeals cited our deci-
sion in State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850
(2016), in which we reasoned that a sufficient factual basis is
a requirement for a finding that a plea was entered into under-
standingly and voluntarily and that, because one of the limited
challenges that may be made to a plea-based conviction on
appeal is whether the plea was understandingly and volun-
tarily made, a defendant does not waive a challenge to the fac-
tual basis when he or she enters a plea. See, State v. Clemens,
300 Neb. 601, 915 N.W.2d 550 (2018); State v. Schiesser, 24
Neb. Ct. App. 407, 888 N.W.2d 736 (2016). The State does not
challenge this ruling on further review.
The Court of Appeals then identified the elements of felony
child abuse as set forth in Neb. Rev. Stat. § 28-707(1) (Reissue
2016), which provides in relevant part:
A person commits child abuse if he or she knowingly,
intentionally, or negligently causes or permits a minor
child to be:
(a) Placed in a situation that endangers his or her life or
physical or mental health;
(b) Cruelly confined or cruelly punished;
(c) Deprived of necessary food, clothing, shelter, or
care;
(d) Placed in a situation to be sexually exploited . . . ;
(e) Placed in a situation to be sexually abused . . . ; or
(f) Placed in a situation to be a trafficking victim . . . .
Under § 28-707(4), if the child abuse offense is committed
knowingly and intentionally and does not result in serious
bodily injury or death, it is a Class IIIA felony.
The Court of Appeals determined that based on the plain
language of § 28-707(1), the factual basis that was set forth
by the State at Ettleman’s plea hearing did not show that
Ettleman knowingly and intentionally placed her son in a
situation that endangered his life or physical or mental health,
nor did it show a basis for any of the other ways set forth in
the statute for committing child abuse. The Court of Appeals
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acknowledged that it could look beyond the factual basis given
at the plea hearing and consider other material when deciding
whether a factual basis existed. The Court of Appeals therefore
examined the presentence investigation report and noted that it
contained further details regarding the events that gave rise to
the charges against Ettleman.
After considering the record as a whole, including infor-
mation in the presentence investigation report, the Court of
Appeals stated:
Ettleman took her son to her friend’s house at approxi-
mately 8:30 in the evening, and immediately left when
she realized her friend was not home. While we acknowl-
edge that Ettleman went to the home to sell prescription
medication, an illegal action, we fail to see, based on
these facts, how Ettleman knowingly and intentionally
exposed her child’s life or physical or mental health to
danger or the peril of probable harm or loss.
State v. Ettleman, No. A-17-782, 2018 WL 3902173 at *4
(Neb. App. Aug. 14, 2018) (selected for posting to court
website). The Court of Appeals concluded that the record
did not show a sufficient factual basis to meet the elements
under § 28-707(1) and (4) and that therefore, the district court
abused its discretion when it accepted Ettleman’s no contest
plea to felony child abuse and when it found her guilty of
that offense.
Based on this conclusion, the Court of Appeals determined
that the proper disposition of the appeal was to “reverse the
order of the district court which accepted that no contest
plea” and to “vacate Ettleman’s conviction for felony child
abuse.” State v. Ettleman, 2018 WL 3902173 at *5. The Court
of Appeals acknowledged that the State had urged in its brief
that if the factual basis was insufficient, then the proper rem-
edy would be to “‘undo the entire plea bargain, and return the
parties to square one and start over.’” Id. at *4. The Court of
Appeals responded to the State’s argument by stating that “the
State’s ability to further prosecute Ettleman is a matter to be
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determined at the trial level before it can be considered on
appeal.” Id.
Contrary to the State’s urging that the “proper remedy is
to undo the entire plea bargain,” brief for appellee at 6-7, the
Court of Appeals vacated Ettleman’s plea-based conviction
for felony child abuse but affirmed her plea-based conviction
for attempted possession of a controlled substance. The Court
of Appeals noted that the district court “provided only one
sentence for both convictions,” State v. Ettleman, 2018 WL
3902173 at *1, and it therefore vacated Ettleman’s sentence
and remanded the matter to the district court for resentencing
on the remaining conviction for attempted possession of a con-
trolled substance.
We granted the State’s petition for further review.
ASSIGNMENTS OF ERROR
On further review, the State claims that the Court of Appeals
erred when it found that Ettleman’s plea to felony child abuse
was not supported by a factual basis and when it therefore
reversed her conviction for that offense. The State further
claims that the Court of Appeals erred when it “suggest[ed]”
that Ettleman would not be subject to retrial on the felony
child abuse charge. The State contends that if the plea to
felony child abuse was in fact not supported by a factual basis,
then the proper disposition upon remand is either (1) the State
is given an opportunity to establish a factual basis or (2) the
entire plea agreement is set aside and the original charges
are reinstated.
STANDARD OF REVIEW
[1,2] 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. See State v. Clemens, 300 Neb. 601, 915 N.W.2d
550 (2018). A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
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depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. Id.
ANALYSIS
The Factual Basis in This Case Was
Not Sufficient to Support the Plea
to Felony Child Abuse.
The State claims that the Court of Appeals erred when
it found that Ettleman’s plea to felony child abuse was not
supported by a factual basis. We have long stated that a trial
court is accorded discretion in deciding to accept a guilty plea.
See State v. Clemens, supra. However, we are aware that we
have not spoken on the particular level of probable guilt for
the factual basis inquiry. We are further aware that there is
a range of “proof” which various courts have required. For
example, some courts have held that a court does not need to
be convinced beyond a reasonable doubt that the defendant is
guilty, e.g., Maes v. State, 114 P.3d 708 (Wyo. 2005), but only
that the record demonstrates the facts to support the elements
of the offense, e.g., Rhoades v. State, 848 N.W.2d 22 (Iowa
2014), or that the factual basis must supply evidence about
the elements from which the court could reasonably conclude
that the defendant is guilty, e.g., Rhoades v. State, 675 N.E.2d
698 (Ind. 1996). However, the comment to the ABA Standards
for Criminal Justice, Pleas of Guilty, Standard 14-1.6(a), com-
mentary at 68 (3d ed. 1999), has summarized this area and
stated as follows:
The matter is left largely to the discretion of the judge, as
the circumstances of the case will dictate both the degree
and kind of inquiry that is necessary. This approach is
consistent with the Federal Rules of Criminal Procedure
and most other authorities, except for the Model Code of
Pre-Arraignment Procedure, which states that there must
be “reasonable cause” to believe the defendant is guilty.
The purpose of this language, according to the commen-
tary to that provision, is to assure at the taking of a guilty
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plea that there is at least a factual showing sufficient to
hold a defendant after a preliminary hearing.
We determine that in this case, we need not resolve the
issue of the proper level of probable guilt for the factual basis
inquiry because under each of the standards, the factual basis
was not sufficient and the Court of Appeals did not err when
it found that the factual basis for felony child abuse was
insufficient.
We generally read the Court of Appeals’ opinion as deter-
mining that although § 28-707(1) sets forth various ways in
which a person might commit child abuse, the only one that
was arguably supported by the facts of this case was that set
forth in subsection (1)(a), which provides that one commits
child abuse if he or she causes or permits a minor child to
be “[p]laced in a situation that endangers his or her life or
physical or mental health.” The Court of Appeals determined
that there was no evidence that Ettleman’s child was actually
placed in a situation that endangered his life or physical or
mental health; instead, the evidence was that she took him to
the home of a friend and that at the time they entered, it was
occupied by law enforcement officers. The Court of Appeals
reasoned that although Ettleman went to the home with the
intention of committing an illegal act by selling prescription
medication, there was no evidence of any situation at the
house that in fact endangered the child’s life or physical or
mental health. We too recognize that Ettleman went to Tanya
Brainard’s house to sell prescription medication, and we do
not condone Ettleman’s conduct. But, we find no assertion or
evidence in the record that the child was endangered when
Ettleman embarked upon or drove to Brainard’s house or upon
entering the house.
On further review, the State challenges the completeness
of the Court of Appeals’ review of the record, in particu-
lar, its consideration of the presentence investigation report.
It disputes the Court of Appeals’ characterization of certain
aspects of the record. The State highlights information from
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an investigative report prepared by Christian Frerichs, a law
enforcement officer involved in Ettleman’s arrest. Frerichs’
report was included in the presentence investigation report.
Frerichs’ report indicates that he and other officers executed a
search warrant at Brainard’s house, during which they gained
access to Brainard’s cell phone. Frerichs discovered text mes-
sage conversations with Ettleman which indicated that Ettleman
had previously sold prescription medication to Brainard and
that Brainard owed Ettleman “a significant amount of money
for past drug debts.”
Frerichs initiated a text messaging conversation with
Ettleman using Brainard’s cell phone and posing as Brainard.
Frerichs sent Ettleman texts indicating that Ettleman could
collect some of the amounts that were due if she brought addi-
tional pills to Brainard’s house. Ettleman texted in reply that
Brainard owed her $430, and Frerichs, posing as Brainard,
said that Ettleman could collect approximately $300 of that
amount because “a buyer [was] coming to town shortly and
. . . they would have cash in hand.” After discussing quantities
and price, Ettleman offered to bring approximately 40 pills to
Brainard’s house.
Ettleman arrived at Brainard’s house and, after texting
Brainard (Frerichs) to announce her arrival, Ettleman “walked
into Brainard’s residence along with her 11 year old son.”
Ettleman was met by two officers. Ettleman asked where
Brainard was, and after she was told that Brainard was not
there, Ettleman returned to her van to wait for Brainard’s
return. Frerichs asked the other officers to go speak with
Ettleman; they did so, and eventually Ettleman returned with
them to the residence where Frerichs told her that he—rather
than Brainard—had been exchanging text messages with her.
The State points to information in Frerichs’ report as factual
support for Ettleman’s plea to felony child abuse. The State
asserts that “Ettleman knowingly took her son to a substantial
drug deal to deliver 44 [pills] to a person who already owed
over $400 for drugs.” Brief for appellee in support of petition
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for further review at 6-7. The State further asserts that “there
would also be an unknown person present who ostensibly had
money to pay for the drugs Ettleman was bringing.” Id. at 7.
The State contends that Ettleman should have been “highly
suspect of a promise . . . that an unknown party had cash in had
[sic] to pay for the drugs” and that it “should have been read-
ily apparent that there was a substantial chance that Ettleman
was being set up for a robbery.” Id. The State further contends
that “to willingly allow her son inside the house where [a rob-
bery might] have occurred at least negligently placed him in a
situation that endangered his physical health.” Id.
[3] We note that in this case, Ettleman was charged in count
III as having committed the Class IIIA felony of child abuse,
which, under § 28-707(4), is required to have been commit-
ted knowingly and intentionally. She was not charged with a
crime committed negligently under the criminal statutes. When
the alleged abuse does not result in serious bodily injury, the
abuse is committed negligently and is a Class I misdemeanor
under § 28-707(3). But, contrary to the State’s urging, the
felony child abuse to which Ettleman pled could not be sup-
ported by a negligent act. The statute under which Ettleman
was charged requires that the child actually be “[p]laced in a
situation that endangers” the child. § 28-707(1)(a). Regardless
of what Ettleman believed regarding the situation in Brainard’s
house, the situation that actually existed was composed of
the fact that there were a number of law enforcement officers
inside the house. It is not accurate to conclude that the child
was actually endangered by the presence of law enforce-
ment officers.
Despite the facts on the ground, the State’s argument relies
on inferences that Ettleman should have “known” that the
person who allegedly had money to buy pills would be at
Brainard’s house, that she was possibly being set up for a rob-
bery, and that the unknown person posed a threat to her and her
son. It is not clear from Frerichs’ report that Ettleman was told
that the buyer would be at Brainard’s house; the record shows
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only that she was told that the buyer would be “coming to town
shortly.” The State’s rationale is that Ettleman speculated that
she was being set up for a robbery because Frerichs, posing as
Brainard, texted that an unnamed person had cash to buy pills.
Even if it could reasonably be inferred that Ettleman believed
she was being set up for a robbery, it requires further infer-
ences to find that she went to a house to be robbed and know-
ingly and intentionally brought her child to the house to place
him in the middle of a robbery.
[4,5] More to the point, the information in Frerichs’ report
makes clear that the State’s fanciful scenario depicting an
unknown person who intended to rob Ettleman was not the
situation that actually existed in the house into which Ettleman
brought her son and, as noted, the State makes no claim that
Ettleman’s child was endangered during the drive to Brainard’s
house. In reality, as noted, the situation in the house was that
there were law enforcement officers conducting an investiga-
tion. Even if one could reasonably find that the State’s robbery
scenario was the situation that Ettleman believed was present
in Brainard’s house, such evidence would at best support a con-
viction for the lower-graded offense of attempted child abuse
to which she did not plead. Under Neb. Rev. Stat. § 28-201(1)
(Reissue 2016), one commits criminal attempt if he or she
“[i]ntentionally engages in conduct which would constitute the
crime if the attendant circumstances were as he or she believes
them to be,” and § 28-201(4)(d) provides that criminal attempt
is a Class IV felony when the crime attempted is a Class III
or Class IIIA felony. In State v. Jost, 219 Neb. 162, 169, 361
N.W.2d 526, 531 (1985), this court reasoned that requiring a
factual basis “[e]nsures that a defendant actually committed an
offense at least as serious as the one to which he is willing to
plead guilty.”
The State appears to argue that a factual basis exists for
either attempted felony child abuse based on circumstances
Ettleman believed to be present or misdemeanor child abuse
based on negligent action on Ettleman’s part. But the charge
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to which Ettleman pled was Class IIIA felony child abuse, a
conviction which required that she knowingly and intention-
ally caused or permitted the child to be placed in a situation
that endangered his life or physical or mental health. Nothing
in the record indicates that such a situation actually existed in
the house into which Ettleman brought the child, and because
in reality there was no such evidence, a fortiori, there was no
evidence that she knowingly and intentionally placed her child
in such a situation.
As relevant to this appeal, § 28-707(1) prohibits knowingly,
intentionally, or negligently causing or permitting a minor
child to be placed in a situation that endangers his or her life
or physical or mental health. It is certainly conceivable that
one could knowingly, intentionally, or negligently endanger a
child’s physical or mental health by voluntarily taking the child
along on a prearranged drug deal, if in fact that is the situation
into which the child is being placed.
But, we agree with the Court of Appeals’ conclusion that the
record in this case did not provide a factual basis to support a
plea to Class IIIA felony child abuse. In this case, we have a
dubious factual basis and no statement from Ettleman that the
factual basis is sufficient to support a conviction for the charge
to which she is pleading. Our opinion today should not be read
to preclude a defendant from being treated as having waived an
objection to the sufficiency of the State’s factual basis where
the record of a plea colloquy demonstrates that the trial court
specifically asked the defendant or his or her counsel whether
the factual basis provided by the State is sufficient to support
the plea and the defendant failed to object to its sufficiency
upon inquiry by the court. We therefore conclude that the Court
of Appeals did not err when it found that Ettleman’s plea to
felony child abuse was not supported by a factual basis.
Proper Disposition.
The State argues alternatively that in the event we con-
clude there was not a sufficient factual basis to support
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Ettleman’s plea to felony child abuse, the Court of Appeals
erred in its disposition of this matter. The State specifically
claims that the Court of Appeals erred when it “suggest[ed]”
that Ettleman could not be subject to retrial on the felony
child abuse charge. The State further argues that the Court
of Appeals erred when it reversed only Ettleman’s conviction
for felony child abuse rather than disposing of the appeal in a
manner that encompassed the entire plea agreement. We agree
with the State that the disposition by the Court of Appeals was
not comprehensive, and instead, we render a disposition as
indicated below.
[6] We first address the State’s argument that the Court
of Appeals “suggest[ed]” Ettleman could not be retried on
remand. We do not read the Court of Appeals’ opinion as mak-
ing such a suggestion. Instead, we note the Court of Appeals
stated that “the State’s ability to further prosecute Ettleman
is a matter to be determined at the trial level before it can be
considered on appeal.” State v. Ettleman, A-17-782, 2018 WL
3902173 at *4 (Neb. App. Aug. 14, 2018) (selected for posting
to court website). The Court of Appeals therefore properly left
the question of the State’s further action to be determined on
remand. We note, however, that we know of no authority to
the effect that either a trial court’s erroneous acceptance of a
plea or the determination by an appellate court that the factual
basis was not sufficient acts as an acquittal or an event that
implicates double jeopardy concerns. To the contrary, there is
persuasive authority that “‘[t]he Double Jeopardy Clause is not
violated when a criminal defendant pleads guilty while reserv-
ing his right to appeal, prevails on appeal, and consequently
must either re-plead, endure further pre-trial proceedings, or go
to trial.’” U.S. v. Rea, 300 F.3d 952, 959 (8th Cir. 2002) (quot-
ing U.S. v. Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000)).
See United States v. Scott, 437 U.S. 82, 90-91, 98 S. Ct. 2187,
57 L. Ed. 2d 65 (1978) (stating “venerable principle[]” of
double jeopardy jurisprudence that “[the] successful appeal
of a judgment of conviction, on any ground other than the
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insufficiency of the evidence to support the verdict . . . poses
no bar to further prosecution on the same charge”). See, also,
State v. Szpyrka, 223 Ariz. 390, 224 P.3d 206 (Ariz. App. 2010)
(stating in case where factual basis underlying plea agree-
ment became erroneous, repleading or retrial not precluded by
Double Jeopardy Clause). As discussed below, the case should
proceed on remand as if the district court had properly rejected
Ettleman’s plea to felony child abuse for lack of a factual basis,
and all pending charges remained viable.
We do not appear to have previously addressed how an
appellate court should remedy the situation when it determines
that a plea was not valid because it was not supported by a fac-
tual basis. As discussed above, we have stated that a sufficient
factual basis is a requirement for finding that a plea was under-
standingly and voluntarily entered and hence valid. See State
v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016). That is, if
there was not a sufficient factual basis, the plea was not made
understandingly and voluntarily and therefore the court should
not have accepted the plea. It logically follows that, as the
State suggests, a proper remedy on appeal would put Ettleman
and the State back where they would have been if the court
had properly refused the plea which lacked a sufficient factual
basis. And, in this case, the State does not claim it relied on the
plea to its detriment or that invalidation of the plea precludes it
from obtaining a valid conviction.
[7] Putting the parties back where they would have been,
as we have determined, appears to be the approach of other
jurisdictions. For example, the Supreme Court of New Jersey
in State v. Campfield, 213 N.J. 218, 232, 61 A.3d 1258, 1266
(2013), reasoned:
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.
[State v. Barboza, 115 N.J. 415, 558 A.2d 1303 (1989)].
If an appellate court determines that “a plea has been
accepted without an adequate factual basis, the plea,
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the judgment of conviction, and the sentence must be
vacated, the dismissed charges reinstated, and defendant
allowed to re-plead or to proceed to trial.” [Id. at 420, 558
A.2d at 1305].
[8] In a similar vein, the Supreme Court of Iowa in State
v. Gines, 844 N.W.2d 437 (Iowa 2014), held that where on
remand it was 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.
But if the State could not establish a factual basis for the
specific charges to which the defendant had earlier entered
a plea, then the State would not have received the benefit of
its plea bargain (which agreement may have contained other
features such as dismissal of other charges or refraining from
seeking enhancement). The Gines court reasoned that “if the
State cannot establish the required factual basis . . . , we must
put the State back in the position it was in before making
the plea agreement,” which included, inter alia, “reinstat[ing]
any charges or sentencing enhancements dismissed from the
[operative] information in contemplation of the plea agree-
ment.” 844 N.W.2d at 442. See, also, U.S. v. Tunning, 69 F.3d
107, 115 (6th Cir. 1995) (describing “‘two remedy’ rule” under
which federal appellate court either remands to allow govern-
ment to establish factual basis or vacates plea and remands for
defendant to plead anew).
We determine that the appropriate remedy in this case is to
reverse in part the Court of Appeals’ decision with directions
to vacate the plea and remand the matter to the district court
for further proceedings. The district court should first deter-
mine whether the State can establish a proper factual basis
for Ettleman’s plea to Class IIIA felony child abuse, keeping
in mind our analysis herein and the analysis of the Court of
Appeals in its opinion, which led to the conclusion that the
record as it stands did not provide a sufficient factual basis.
If the State cannot establish a factual basis for the plea that
was entered, then the court should put the State and Ettleman
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back in the position they were in before the court accepted the
plea agreement.
Our disposition differs from that of the Court of Appeals
which limited its remedy to reversal of the felony child abuse
conviction and vacation of the sentence imposed for both con-
victions. Contrary to the disposition of the Court of Appeals,
we reverse the conviction for felony child abuse and give the
State an opportunity to establish a proper factual basis therefor.
Failing that, we conclude that in order to put the parties back
in the position prior to acceptance of the invalid plea to felony
child abuse, the remedy requires not only that the conviction
for felony child abuse be reversed and the sentence for both
convictions vacated but also that the conviction for attempted
possession of a controlled substance be reversed. Because
the plea agreement was negotiated as a whole, if one part of
the plea agreement was not supported by a factual basis and
should not have been accepted, then the entire integrated plea
should not have been accepted. And, as noted earlier, in this
case, the court imposed a single sentence of probation for both
counts which further suggests that the pleas could reasonably
be viewed as parts of one agreement.
Upon remand, if the State cannot establish a factual basis for
felony child abuse, Ettleman’s pleas to both counts should be
vacated and the parties allowed to either negotiate a new plea
agreement or proceed to trial on the charges in the operative
information prior to the agreement that resulted in Ettleman’s
pleas. Allowing the parties to proceed in such manner permits
reinstatement of the charges set forth in the operative informa-
tion, including charges that were dismissed or downgraded as
part of the plea agreement. See, State v. Gines, 844 N.W.2d
437 (Iowa 2014); State v. Campfield, 213 N.J. 218, 61 A.3d
1258 (2013).
CONCLUSION
We affirm the Court of Appeals’ decision to the extent
it determined that the factual basis for felony child abuse
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was not sufficient and reversed that conviction. However, we
reverse the remainder of the decision of the Court of Appeals.
We remand the matter to the Court of Appeals with directions
to reverse both convictions, vacate the sentence, and remand
the matter to the district court with instructions to afford the
State the opportunity to provide a sufficient factual basis to
support the validity of a plea to felony child abuse and, fail-
ing that, restore the parties to the position they were in before
making the plea agreement, including reinstating the charges
in the operative information.
A ffirmed in part, and in part reversed
and remanded with directions.
Freudenberg, J., dissenting.
I respectfully dissent from the majority’s conclusion that
the district court abused its discretion when it found a suffi-
cient factual basis existed to support the appellant’s no contest
plea to the offense of child abuse pursuant to Neb. Rev. Stat.
§ 28-707(1) (Reissue 2016). It is my opinion that the factual
basis provided by the State prior to the appellant’s voluntarily
entering her no contest plea provided sufficient information to
reasonably establish that the alleged crime had occurred. See
§ 28-707(1).
As stated in the majority opinion, the relevant portion of
§ 28-707(1) states: “A person commits child abuse if he or
she knowingly, intentionally, or negligently causes or permits
a minor child to be: (a) Placed in a situation that endangers
his or her life or physical or mental health.” The factual basis
provided to the district court reasonably established that the
appellant knowingly caused or permitted her 11-year-old son
to be placed in a situation that endangered his mental health.
To fairly apply an abuse of discretion standard to the dis-
trict court’s ruling, a liberal reading of the provided factual
basis should occur. See, generally, 1A Charles Alan Wright
& Andrew D. Leipold, Federal Practice and Procedure § 179
(3d ed. 2008 & Supp. 2019) (indicating that federal courts
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have broad discretion in making factual basis decision). The
information provided by the State and not timely contested by
the appellant clearly shows that the appellant had, on several
previous occasions, illegally distributed prescription narcotics
to Tanya Brainard and was owed money by Brainard for those
transactions. After incurring such debt, Brainard provided law
enforcement information regarding the appellant’s distribution
activities. Law enforcement, posing as Brainard, then contacted
the appellant. The appellant agreed to provide prescription
narcotics to Brainard for a drug transaction on that same day
involving an undisclosed third party. The appellant gathered
the narcotics and her 11-year-old son and placed both in her
vehicle for transport to Brainard’s residence.
The fact that the appellant knowingly and intentionally
placed her son in the vehicle to accompany her in the com-
mission of a felony drug transaction is sufficient to establish
she had “endanger[ed]” his mental health under § 28-707(1).
Black’s Law Dictionary defines “endangerment” as: “The act
or an instance of putting someone or something in danger;
exposure to peril or harm.” Black’s Law Dictionary 644 (10th
ed. 2014). Under this definition and the standard set forth by
Nebraska law, actual harm is not required to occur under an
endangerment standard—merely the exposure to potential harm
is sufficient. Under such standard, the district court clearly did
not abuse its discretion by finding that a factual basis existed
to support the entry of the appellant’s no contest plea. For this
reason, I dissent.
While I dissent in the majority’s decision regarding the
existence of a sufficient factual basis, I fully agree with the
remainder of the majority opinion. I specifically address the
procedural tactic utilized by the appellant in this matter.
The parties informed the district court that a plea agree-
ment had been reached. As part of the plea hearing, the State
provided a factual basis. When the district court inquired as
to the appellant’s opinion regarding the sufficiency of the fac-
tual basis, the appellant raised no challenge and her attorney
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simply stated that he “[w]ould address those at sentencing . .
. .” After this exchange, the appellant, with no further com-
ment from her or her attorney, entered a no contest plea to
the amended charges. If the appellant had concerns or issues
with the sufficiency of the factual basis provided, she was
not required to enter a no contest plea to felony child abuse
at that time. She had a right to a trial and to fully contest
the charge.
The approach taken by the appellant should be disfavored
by this court, and such approach has been addressed in the
majority opinion. It is clear that the record from the plea hear-
ing does not contain a statement from the appellant affirming
the sufficiency of the factual basis provided by the State. The
absence of such acknowledgment has allowed the appellant
to raise this subsequent challenge. However, as suggested by
the majority, an expansion of the trial court’s plea colloquy to
include an inquiry regarding the sufficiency of the factual basis
would directly address such issue. An affirmative response
from a criminal defendant would, in most circumstances, act
as a waiver of a later sufficiency challenge. Any response
short of an affirmative response places the trial court on notice
that further inquiry is warranted and, depending on the results,
may ultimately require the trial court to reject the proffered
plea. I believe such clarification will adequately address future
attempts of gamesmanship similar to that utilized during the
appellant’s plea hearing.