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


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/31/2023 09:06 AM CDT
    - 892 -
    Nebraska Supreme Court Advance Sheets
    313 Nebraska Reports
    STATE V. MEAD
    Cite as 
    313 Neb. 892
    State 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.
    - 893 -
    Nebraska Supreme Court Advance Sheets
    313 Nebraska Reports
    STATE V. MEAD
    Cite as 
    313 Neb. 892
    Douglas 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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    Nebraska Supreme Court Advance Sheets
    313 Nebraska Reports
    STATE V. MEAD
    Cite as 
    313 Neb. 892
    of 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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    313 Nebraska Reports
    STATE V. MEAD
    Cite as 
    313 Neb. 892
    assault 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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    Nebraska Supreme Court Advance Sheets
    313 Nebraska Reports
    STATE V. MEAD
    Cite as 
    313 Neb. 892
    ASSIGNMENTS 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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    Nebraska Supreme Court Advance Sheets
    313 Nebraska Reports
    STATE V. MEAD
    Cite as 
    313 Neb. 892
    he 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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    Nebraska Supreme Court Advance Sheets
    313 Nebraska Reports
    STATE V. MEAD
    Cite as 
    313 Neb. 892
    accusers. 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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    Nebraska Supreme Court Advance Sheets
    313 Nebraska Reports
    STATE V. MEAD
    Cite as 
    313 Neb. 892
    against 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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    Nebraska Supreme Court Advance Sheets
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    STATE V. MEAD
    Cite as 
    313 Neb. 892
    constitutional 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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    Nebraska Supreme Court Advance Sheets
    313 Nebraska Reports
    STATE V. MEAD
    Cite as 
    313 Neb. 892
    were 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.