State v. Mead , 313 Neb. 892 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/31/2023 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. MEAD
Cite as 313 Neb. 892State of Nebraska, appellee, v.
Wesley A. Mead, appellant.
___ N.W.2d ___
Filed March 31, 2023. No. S-22-010.
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 case of an abuse of discretion.
2. Pleas: Waiver. In order to support a finding that a plea of guilty or
nolo contendere has been entered freely, intelligently, voluntarily, and
understandingly, the court must (1) inform the defendant concerning (a)
the nature of the charge, (b) the right to assistance of counsel, (c) the
right to confront witnesses against the defendant, (d) the right to a jury
trial, and (e) the privilege against self-incrimination; and (2) examine
the defendant to determine that he or she understands the foregoing.
Additionally, the record must establish that (1) there is a factual basis
for the plea and (2) the defendant knew the range of penalties for the
crime with which he or she is charged. A voluntary and intelligent
waiver of the above rights must affirmatively appear from the face of
the record.
3. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Petition for further review from the Court of Appeals, Pirtle,
Chief Judge, and Bishop and Welch, Judges, on appeal thereto
from the District Court for Sherman County, Karin L. Noakes,
Judge. Judgment of Court of Appeals reversed and remanded
with directions.
Christopher P. Wickham, of Sennett, Duncan, Jenkins &
Wickham, P.C., L.L.O., for appellant.
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STATE V. MEAD
Cite as 313 Neb. 892Douglas J. Peterson, Attorney General, Siobhan E. Duffy,
and Erin E. Tangeman for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
We granted further review of a Nebraska Court of Appeals
decision 1 affirming plea-based convictions. Although the trial
court did not ask if the defendant understood his rights or that
his plea would waive certain constitutional rights, the Court
of Appeals reasoned that the record as a whole demonstrated
the pleas were entered voluntarily and intelligently. But our
jurisprudence requires that the court examine the defendant and
that the record show an affirmative, express waiver of rights.
Because no such waiver appears in the record, we reverse, and
remand the cause with directions.
BACKGROUND
Arraignment and Plea
The State charged Wesley A. Mead with 11 felonies. Mead
appeared with counsel at the arraignment. The district court
informed Mead that he had the right to a trial by a jury, the
right to be confronted by all witnesses against him and to
cross-examine those who testify against him at trial, the right
to require witnesses to be present at any hearing or trial and
to have them testify on his behalf, the right to remain silent
and not be compelled to make any statement or testify against
himself at any hearing, and the right to be represented by
an attorney at all stages. The court also advised Mead that
the State must prove beyond a reasonable doubt that Mead
committed the offense charged before he could be convicted
1
State v. Mead, No. A-22-010, 2022 WL 14169162 (Neb. App. Oct. 25,
2022) (selected for posting to court website).
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STATE V. MEAD
Cite as 313 Neb. 892of the offense and that if found guilty, he had the right to
appeal the conviction. The court did not ask Mead if he under-
stood those rights.
The court next informed Mead that he would be asked to
enter a plea. The court explained the various consequences that
would follow depending on whether Mead entered a plea of not
guilty, a plea of guilty, or a plea of no contest. It stated, “If you
plead guilty or no contest, you are advised that you’re giving
up all the rights previously explained to you except your right
to an attorney and the right to appeal.”
Following the explanation of the pleas, the court did not
ask Mead if he understood the various pleas or if he had
any questions.
The court instead asked if Mead could read, write, and
understand the English language. Mead answered, “Yes.” The
court asked if Mead was under the influence of alcohol or any
mind-altering substance and if he was taking any prescriptions
that affected his judgment. The court inquired if Mead under-
stood what the court was saying, and he answered, “Yes.” The
court stated, “It appears as though you are responding logically
to the questions that I’m asking you.”
The court inquired about a plea agreement. Mead’s coun-
sel replied that under the agreement, eight particular charges
would be dismissed and Mead would enter a plea of guilty or
no contest to the remaining three charges.
The court then read the three charges against Mead and
asked if Mead understood the charges. He stated that he did.
For each of the three charges, the court informed Mead of
the felony classification—a Class IIIA felony, a Class IB
felony, and a Class IV felony—and of the sentencing range.
When the court asked whether Mead understood the possible
penalties, Mead said, “Other than I thought the IB [felony]
only was a 15-year minimum, at least that’s what I’ve read
in your law books, revised of 2016.” After a discussion
with counsel, the court “reiterate[d] the penalty on sexual
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STATE V. MEAD
Cite as 313 Neb. 892assault of a child, first degree.” The court then ascertained
that Mead understood the possible penalties.
For each charge, Mead entered a plea of no contest and
the prosecutor provided a factual basis. The court asked if
Mead contested the factual bases, and Mead answered, “Yes.”
Mead’s counsel clarified: “My client is saying I entered a no
contest. I don’t agree with it, but I’m not contesting it.” Mead
confirmed that was correct and that he was not contesting the
factual basis provided by the State. The court found that a fac-
tual basis existed and that Mead was guilty of the three charges
beyond a reasonable doubt.
Sentencing
The court ordered a presentence investigation. During the
sentencing hearing, Mead’s counsel stated that Mead had
requested counseling a number of times to “go through feelings”
and “go through issues” but had not been provided a counselor.
The court imposed consecutive sentences of imprisonment.
Appeal
Mead appealed and assigned three errors. Among other
things, he assigned that his no contest pleas were not entered
freely, intelligently, voluntarily, understandingly, and know-
ingly and that his trial counsel was ineffective in failing “to file
a motion to obtain a psychological evaluation prior to sentenc-
ing for mitigation purposes.”
The Court of Appeals affirmed Mead’s convictions and sen-
tences. It determined that Mead knew and understood what was
happening at the plea hearing and that he asked questions when
he did not understand something that was said. As to Mead’s
claim that counsel provided ineffective assistance of counsel
in failing to file a motion to obtain a psychological evaluation
prior to sentencing, the Court of Appeals reasoned that the
record showed counsel was not ineffective.
Mead filed a petition for further review, which we granted.
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313 Nebraska Reports
STATE V. MEAD
Cite as 313 Neb. 892ASSIGNMENTS OF ERROR
Mead assigns two errors in his petition for further review.
First, Mead alleges that the Court of Appeals erred by finding
that his pleas of no contest were entered freely, intelligently,
voluntarily, understandingly, and knowingly. Second, Mead
alleges that the Court of Appeals erred by finding that trial
counsel was not ineffective by failing to file a motion to obtain
a psychological evaluation prior to sentencing for mitiga-
tion purposes.
STANDARD OF REVIEW
[1] 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 case of an abuse of discretion. 2
ANALYSIS
Pleas
Mead challenges the validity of his no contest pleas. He
alleges that the Court of Appeals erred by finding that his pleas
were entered freely, intelligently, voluntarily, understandingly,
and knowingly. We agree.
[2] We have delineated the requirements for a valid plea of
guilty or no contest. In order to support a finding that a plea
of guilty or nolo contendere has been entered freely, intel-
ligently, voluntarily, and understandingly, the court must (1)
inform the defendant concerning (a) the nature of the charge,
(b) the right to assistance of counsel, (c) the right to confront
witnesses against the defendant, (d) the right to a jury trial,
and (e) the privilege against self-incrimination; and (2) exam-
ine the defendant to determine that he or she understands
the foregoing. Additionally, the record must establish that
(1) there is a factual basis for the plea and (2) the defend­
ant knew the range of penalties for the crime with which
2
State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
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Cite as 313 Neb. 892he or she is charged. 3 A voluntary and intelligent waiver of
the above rights must affirmatively appear from the face of
the record. 4
The record shows that the district court complied with most,
but not all, of this dictate. The court properly informed Mead
of the nature of the charges and his rights. It obtained a fac-
tual basis for the charges and advised Mead of the range of
penalties. However, the district court did not examine Mead
to determine whether he understood the right to assistance of
counsel, the right to confront witnesses, the right to a jury trial,
or the privilege against self-incrimination. And although the
court informed Mead that a plea of guilty or no contest would
give up some of the rights previously explained, the court did
not ask Mead if he understood that a guilty or no contest plea
would waive those rights.
The requirement that the record show a voluntary and intel-
ligent waiver of a defendant’s rights is derived from the U.S.
Supreme Court’s decision in Boykin v. Alabama. 5 There, the
Court held that a defendant’s guilty plea was invalid unless
the record affirmatively showed that the defendant voluntarily
and intelligently waived the rights to trial by jury, to remain
silent, and to confront accusers. The Court stated, “We cannot
presume a waiver of these three important federal rights from
a silent record.” 6
Following the lead of Boykin, our decisions require that
the record contain an affirmative waiver of the constitu-
tional rights to a jury trial, to remain silent, and to confront
3
State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986). See, also, State
v. Manjikian, supra note 2; State v. Lee, 282 Neb. 652, 807 N.W.2d 96(2011); State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000); State
v. Hays, 253 Neb. 467, 570 N.W.2d 823 (1997); State v. Ponec, 236 Neb.
710, 463 N.W.2d 793 (1990).
4
State v. Lee, supra note 3.
5
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
6
Id., 395 U.S. at 243.
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STATE V. MEAD
Cite as 313 Neb. 892accusers. In State v. Porchia, 7 the record revealed that the court
did not ask the defendant if he understood that his guilty plea
waived his right to confront and cross-examine witnesses. We
set aside the conviction and sentence due to the “court’s fail-
ure to especially inquire on the record whether [the defendant]
understood that by entering a plea of guilty he was waiving
[that right].” 8
We built on Boykin in State v. Irish. 9 There, we set forth
what the record must show to support a finding that a plea
of guilty or no contest has been entered freely, intelligently,
voluntarily, and understandingly. Among the necessary advise-
ments were that the court inform the defendant concerning the
nature of the charge, the right to assistance of counsel, the right
to confront witnesses against the defendant, the right to a jury
trial, and the privilege against self-incrimination. We stated
that the court must also “examine the defendant to determine
that he or she understands the foregoing.” 10 We added that the
record must establish that there is a factual basis for the plea
and that the defendant knew the range of penalties for the
crime charged.
A decade later, in State v. Hays, 11 we reiterated that an
affirmative, express waiver of rights is required. There, the
trial court advised the defendant of his rights but did not
ascertain whether the defendant understood that he was waiv-
ing those rights. We stated that “a guilty plea is valid only if
the record affirmatively shows that a defendant understands
that by pleading guilty he waives his right to confront wit-
nesses against him, his right to a jury trial, and his privilege
7
State v. Porchia, 221 Neb. 327, 376 N.W.2d 800 (1985).
8
Id. at 328, 376 N.W.2d at 800-01.
9
State v. Irish, supra note 3.
10
Id. at 820, 394 N.W.2d at 883.
11
State v. Hays, supra note 3.
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STATE V. MEAD
Cite as 313 Neb. 892against self-incrimination, or otherwise affirmatively shows an
express waiver of said rights.” 12
Here, the Court of Appeals recognized, but did not enforce,
the requirement from Hays that the record affirmatively show
an express waiver. The court reasoned that although the trial
court did not specifically ask Mead if he understood the rights
he was waiving by pleading no contest, the record as a whole
showed that Mead understood those rights. The court explained
that “Mead did not express a lack of understanding about what
the court was saying and there was nothing in the record to
indicate he did not understand.” 13 The court also determined
that Mead “fail[ed] to affirmatively assert [on appeal] that he
did not understand when the court advised him of the rights
he was waiving” and “simply asserts that the court did not ask
him if he understood.” 14
Rather than delving into whether a trial court’s colloquy
with a defendant before accepting a plea of guilty or no contest
comes “close enough” to compliance with Irish, we instead
adhere to the mandates of cases such as Porchia, Irish, and
Hays. Trial courts must ask the defendant whether he or she
understands that a plea of guilty or no contest waives the right
to confront witnesses, the right to a jury trial, and the privilege
against self-incrimination, or the record must otherwise show
that the defendant expressly waives those rights.
We are confident that our trial courts have followed our
admonition over 40 years ago to “devise and implement a
standard procedure for explaining the various rights to defend­
ants entering pleas of guilty [or no contest].” 15 Although we
then asserted that “there should be no reason in the future
for a court to fail to properly advise defendants of their
12
Id. at 475-76, 570 N.W.2d at 829.
13
State v. Mead, supra note 1 at *2.
14
Id. at *3.
15
State v. Tweedy, 209 Neb. 649, 656, 309 N.W.2d 94, 98 (1981).
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STATE V. MEAD
Cite as 313 Neb. 892constitutional rights when offering pleas of guilty [or no
contest],” 16 we recognize that a standard procedure is not an
ironclad guarantee against error. Here, the record does not
show why the omission occurred.
Because the record does not show that the court asked
Mead if he understood that by entering a plea of guilty or
no contest he was waiving specified constitutional rights, his
pleas must be vacated. Like in State v. Ettleman, 17 we think
the appropriate remedy is to essentially return the State and
Mead to the positions they were in before the court accepted
Mead’s pleas. Thus, we reverse the Court of Appeals’ decision
and remand the cause to that court with directions to reverse
Mead’s convictions, vacate the sentences, and remand the mat-
ter to the district court with instructions to hold a new arraign-
ment hearing.
Ineffective Assistance
of Counsel
[3] Mead also assigns that the Court of Appeals erred by
finding trial counsel was not ineffective for failing to file a
motion to obtain a psychological evaluation prior to sentenc-
ing. Because we are reversing the decision of the Court of
Appeals and remanding the cause with directions for further
proceedings, we need not resolve this issue. An appellate court
is not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it. 18
CONCLUSION
Because the record did not affirmatively show that Mead
understood his rights or that he expressly waived them, the
Court of Appeals erred in finding that his no contest pleas
16
Id.17
State v. Ettleman, 303 Neb. 581, 930 N.W.2d 538 (2019).
18
State v. Yzeta, ante p. 202, 983 N.W.2d 124 (2023).
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STATE V. MEAD
Cite as 313 Neb. 892were voluntarily and intelligently entered. We reverse the
decision of the Court of Appeals and remand the cause to that
court with directions to reverse Mead’s convictions, vacate
the sentences, and remand the matter to the district court with
instructions to hold a new arraignment hearing.
Reversed and remanded with directions.