State v. Kirby , 901 N.W.2d 704 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/29/2017 09:11 AM CDT
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State of Nebraska, appellee, v.
R amon M. K irby, appellant.
___ N.W.2d ___
Filed August 29, 2017. No. A-16-741.
1. Pleas: Courts. A trial court has discretion to allow defendants to with-
draw their guilty or no contest pleas before sentencing.
2. Pleas: Appeal and Error. An appellate court will not disturb the trial
court’s ruling on a presentencing motion to withdraw a guilty or no con-
test plea absent an abuse of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
4. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
5. Pleas. To support a finding that a defendant freely, intelligently, volun-
tarily, and understandingly entered a guilty plea, a court must inform a
defendant about (1) the nature of the charge, (2) the right to assistance
of counsel, (3) the right to confront witnesses against the defendant, (4)
the right to a jury trial, and (5) the privilege against self-incrimination.
The record must also show a factual basis for the plea and that the
defendant knew the range of penalties for the crime charged.
6. Pleas: Proof: Appeal and Error. The right to withdraw a plea previ-
ously entered is not absolute. When a defendant moves to withdraw
his or her plea before sentencing, a court, in its discretion, may sustain
the motion for any fair and just reason, provided that such withdrawal
would not substantially prejudice the prosecution. The defendant has
the burden to show the grounds for withdrawal by clear and convinc-
ing evidence.
7. Sentences. Factors a judge should consider in imposing a sentence
include the defendant’s age, mentality, education, experience, and social
and cultural background, as well as his or her past criminal record or
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law-abiding conduct, motivation for the offense, nature of the offense,
and the amount of violence involved in the commission of the crime.
8. Bonds: Appeal and Error. A pretrial bond and an appeal bond after
conviction are treated differently.
9. Bonds. Neb. Rev. Stat. § 29-2302 (Reissue 2016) requires that a reason-
able bond be set following a misdemeanor conviction in district court.
10. Bonds: Appeal and Error. Reasonableness of the appeal bond amount
is determined under the general discretion of the district court.
11. ____: ____. Factors to be considered in determining the reasonableness
of a defendant’s appeal bond under Neb. Rev. Stat. § 29-2302 (Reissue
2016) following a misdemeanor conviction include the atrocity of the
defendant’s offenses, the probability of the defendant appearing to serve
his or her sentence following the conclusion of his or her appeal, the
defendant’s prior criminal history, and the nature of other circumstances
surrounding the case.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
John C. Jorgensen for appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman,
and, on brief, George R. Love for appellee.
Moore, Chief Judge, and R iedmann and Bishop, Judges.
Bishop, Judge.
Ramon M. Kirby pled no contest to two counts: (1) crim-
inal mischief causing a pecuniary loss between $500 and
$1,500, a Class I misdemeanor, and (2) third degree domestic
assault, a Class I misdemeanor. The district court sentenced
him to concurrent sentences of 270 days’ imprisonment on
each count. Kirby argues that the district court would not allow
him to withdraw his pleas, imposed excessive sentences, and
set an unreasonable appeal bond. For the following reasons,
we affirm.
BACKGROUND
On July 17, 2014, the State filed an information charg-
ing Kirby with three counts: (1) criminal mischief causing
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a pecuniary loss over $1,500, a Class IV felony, pursuant to
Neb. Rev. Stat. § 28-519(1) and (2) (Reissue 2008); (2) ter-
roristic threats, a Class IV felony, pursuant to Neb. Rev. Stat.
§ 28-311.01 (Reissue 2008); and (3) domestic assault, third
degree, a Class I misdemeanor, pursuant to Neb. Rev. Stat.
§ 28-323(1) and (4) (Cum. Supp. 2014). We note that Kirby’s
offenses occurred prior to August 30, 2015, the effective date
of 2015 Neb. Laws, L.B. 605, which changed the classification
of certain crimes and made certain amendments to Nebraska’s
sentencing laws.
In December 2014, the State filed an amended informa-
tion charging Kirby with two counts: (1) criminal mischief
causing a pecuniary loss between $500 and $1,500, a Class I
misdemeanor, pursuant to § 28-519(1) and (3); and (2) third
degree domestic assault, a Class I misdemeanor, pursuant to
§ 28-323(1) and (4). Pursuant to a plea agreement, Kirby pled
“no contest” to counts 1 and 2 of the amended information.
According to the factual basis provided by the State:
[O]n September 6th, 2013, approximately 6:04 a.m., the
Lincoln Police Department received a report of a domes-
tic assault. They received that report from [T.G.] Officers
were dispatched to her residence . . . here in Lincoln,
Lancaster County, Nebraska.
She indicated that between the hours of three o’clock
a.m. and five o’clock a.m. on September 6th, 2013, she
was assaulted by her then boyfriend, [Kirby]. She said
that she had been with [Kirby] for approximately 15
years. She returned home and [Kirby] was already there.
She indicated at some point, while they were in the home
together, he became belligerent, so she asked him to
leave. She said that [Kirby] refused to leave the house,
became physical with her.
She said that as she was walking towards the bedroom,
[Kirby] punched her in the face, forced her into the bed-
room, forced her onto the bed, and then once she was on
the bed, he got on top of her, put his knees on her chest
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and put one hand around her neck and the other on her
head. She said she was unsure if her airway was ever
obstructed, but she did have significant red marks on her
neck and her face from the assault, and those were vis-
ible to the officer. She also indicated that while he was
on top of her, on the bed, he said that he was going to
kill her.
[T.G.] indicated that eventually she was able to get
away from him and she left the house, went to her daugh-
ter’s house . . . . She stayed there for some time before
returning to the home. . . .
Once [T.G. and her daughter] went into the home,
they found that [Kirby] had caused significant damage
to some items, there was a broken computer. Also in the
bathroom, they noticed that [Kirby] had caused some
damage as well, evidently he had plugged up the toilet or
something of that nature; turned on the water, and water
had been overflowing into the bathroom, and then that
flowed down into the basement, and they noticed that
there was standing water in the basement as a result of
the running water.
There was [sic] damage estimates in excess of
$3,000. The total restitution of damage in this case was
$3,453.60.
The State also noted that as part of the plea agreement,
Kirby was to plead to the two Class I misdemeanors in the
amended petition and to pay restitution in the amount of
$3,453.60, which he had paid. When Kirby was asked if that
was his understanding of the plea deal, Kirby responded, “Not
quite. They were supposed to reduce the charges consider-
ably, according to how fast I paid off the restitution, and I
paid it off rather quick . . . [a]nd, no, they did not keep their
word.” Defense counsel informed the court that Kirby may
be referring to an original agreement to deal with his case in
county court, when Kirby was represented by different coun-
sel; current counsel’s understanding was the offer had been
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withdrawn and the case bound over to district court. Kirby
said he hired his current counsel because his previous counsel
“did not make the prosecutor keep their word.” After defense
counsel was allowed to confer with Kirby, Kirby confirmed to
the court that the plea agreement outlined at the hearing was
the agreement as he understood it that day and that he wanted
the court to accept that plea agreement and his no contest plea
to each charge. The district court accepted Kirby’s no contest
pleas to counts 1 and 2.
Kirby failed to appear for sentencing in February 2015, and
a warrant was issued for his arrest. He was not arrested on the
warrant until April 2016.
In June 2016, Kirby appeared before the district court for a
hearing on his motion to withdraw plea. (The motion does not
appear in our record, but the judge’s notes indicate that it was
filed in April.) The district court denied the motion, reasoning
that Kirby understood the nature and terms of the agreement at
the time of his plea.
On August 2, 2016, the district court sentenced Kirby to
concurrent sentences of 270 days’ imprisonment on each count,
with 11 days’ credit for time served. According to the “Judges
Notes” appearing in our transcript, on August 3, the district
court set an appeal bond “in the amount of $250,000 Reg. 10%
bond with community corrections conditions” and Kirby was
“remanded to custody pending posting of appeal bond.”
Kirby now appeals.
ASSIGNMENTS OF ERROR
Kirby assigns, reordered, that the district court erred when it
(1) denied Kirby’s motion to withdraw his pleas, (2) imposed
excessive sentences, and (3) set an unreasonable appeal bond.
STANDARD OF REVIEW
[1-3] A trial court has discretion to allow defendants to with-
draw their guilty or no contest pleas before sentencing. State
v. Carr, 294 Neb. 185, 881 N.W.2d 192 (2016). An appellate
court will not disturb the trial court’s ruling on a presentencing
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motion to withdraw a guilty or no contest plea absent an abuse
of discretion. Id. A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying a just result in matters submitted for disposition. State
v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Abejide, 293 Neb. 687, 879 N.W.2d
684 (2016).
ANALYSIS
Motion to Withdraw Plea.
Kirby asserts that the district court’s denial of his motion
to withdraw plea was an abuse of discretion because “[i]t is
clear from the record that [Kirby] did not fully understand the
nature and terms of the plea agreement,” in that he believed
the agreement “included a [further] substantial reduction in the
charges in congruence with him paying restitution.” Brief for
appellant at 17.
[5] To support a finding that a defendant freely, intelligently,
voluntarily, and understandingly entered a guilty plea, a court
must inform a defendant about (1) the nature of the charge, (2)
the right to assistance of counsel, (3) the right to confront wit-
nesses against the defendant, (4) the right to a jury trial, and
(5) the privilege against self-incrimination. State v. Carr, supra.
The record must also show a factual basis for the plea and
that the defendant knew the range of penalties for the crime
charged. Id. Kirby was advised as to all of the above, and a
factual basis for the pleas was given at the December 2014
plea hearing.
[6] The right to withdraw a plea previously entered is not
absolute. State v. Carr, supra. When a defendant moves to
withdraw his or her plea before sentencing, a court, in its
discretion, may sustain the motion for any fair and just rea-
son, provided that such withdrawal would not substantially
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prejudice the prosecution. Id. See, also, State v. Carlson, 260
Neb. 815, 619 N.W.2d 832 (2000) (reaffirming standard is that
court may allow defendant to withdraw plea, not that court
should allow defendant to withdraw plea). The defendant has
the burden to show the grounds for withdrawal by clear and
convincing evidence. State v. Carr, supra. Clear and convinc-
ing evidence is that amount of evidence which produces in the
trier of fact a firm belief or conviction about the existence of
a fact to be proved. State v. Payne-McCoy, 284 Neb. 302, 818
N.W.2d 608 (2012).
According to Kirby, Nebraska case law “affords little guid-
ance in articulating a coherent meaning for the ‘fair and just’
standard.” Brief for appellant at 15-16. However, while the
cases may not “articulate” a definition for “fair and just,”
they nevertheless provide guidance. See, State v. Carr, 294
Neb. 185, 881 N.W.2d 192 (2016) (holding that newly dis-
covered evidence can be fair and just reason to withdraw plea
before sentencing, but defendant failed to meet his burden by
clear and convincing evidence); State v. Schneider, 263 Neb.
318, 640 N.W.2d 8 (2002) (trial court did not abuse its discre-
tion when it did not allow defendant to withdraw plea after he
learned he would be required to register as sex offender); State
v. Roeder, 262 Neb. 951, 636 N.W.2d 870 (2001) (defend­
ant’s assertion that she felt coercion and duress to make plea
was not fair and just reason to withdraw plea; only evidence
of duress and coercion was fact that defendant missed trial
date prior to entering pleas and was told by counsel that if
she did not accept plea she would spend time in jail due to
her failure to appear); State v. Carlson, supra (defend­ant’s
assertion his attorney promised he could withdraw plea upon
possible discovery of additional evidence failed to establish
fair and just reason to withdraw plea); State v. Schurman, 17
Neb. Ct. App. 431, 762 N.W.2d 337 (2009) (defendant was not
represented at plea hearing, exhibited confusion, and suffered
from bipolar disorder and hearing loss; counsel subsequently
appointed for sentencing phase motioned to withdraw plea
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but motion was denied; reversed on appeal because defend­
ant should have been permitted to withdraw pleas based on
record presented).
At the hearing on Kirby’s motion to withdraw plea, the court
received into evidence the bill of exceptions from the December
2014 plea hearing described previously. Kirby acknowledged
that after the plea agreement was “put on the record,” he
conferred with counsel off the record. Defense counsel then
inquired about Kirby’s recollection of that conversation during
the following colloquy:
Q[:] . . . Kirby, what is your recollection of our con-
versation between yourself and myself, as your attorney,
off the record, on the plea proceeding that was held on
December 2nd, 2014?
A[:] I explained to you how I had a deal made with
the prosecution, and they did not hold up their end of
the deal.
Q[:] And the plea agreement that you believe you were
entitled to was different than the one that was stated on
the record on December 2nd, 2014, correct?
A[:] Correct.
Q[:] What was the difference between the plea agree-
ment put on the record and the one you believed you were
entitled to?
A[:] Well, I already made - they had already reduced
the charges to those, and I was told that the sooner I pay
the restitution off, they would drop the charges further
down. And so I paid them off as quickly as possible.
Q[:] And who provided you with that information . . . ?
A[:] That would have been [my public defender].
....
Q[:] At the time of entry of your plea on December
2nd, 2014, did you feel like you were coerced with regard
to entering that plea?
A[:] Yes.
Q[:] Why is that?
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A[:] I was just encouraged, I guess, maybe not coerced.
Q[:] And was that, in part, due to the issues that you
previously noted with regard to the plea agreement?
A[:] Yes.
On cross-examination, Kirby stated that within a month of
his September 2013 arrest, his public defender told him about
the plea offer wherein the charges would be further reduced if
restitution were paid quickly. When asked by the State what
“further reduced” meant, Kirby responded, “That’s just all [my
public defender] would tell me.”
There was also some discussion during cross-examination
as to whether the plea offer Kirby was referring to was made
in county court, but Kirby did not know where the offer was
made. The State asked the district court “to take judicial notice
of the court filing, including the transcript from county court
that would have been bound over at the time,” and the district
court said it would do so. However, we note that the court file
was not offered or received into evidence, nor does it otherwise
appear in the record before us. But, at the December 2014 plea
hearing (received into evidence at the motion to withdraw plea
hearing), when discussing Kirby’s understanding that under the
plea agreement charges would be reduced considerably based
on how quickly restitution was paid, defense counsel informed
the court that Kirby may be referring to an original agreement
to deal with his case in county court, when Kirby was repre-
sented by different counsel; current counsel’s understanding
was that the offer had been withdrawn and the case bound over
to district court.
In overruling Kirby’s motion to withdraw plea, the district
court found the record clearly reflected that Kirby understood
the nature and terms of the plea agreement. “At the time of the
plea . . . the Court asked him if that was his understanding of
the plea agreement, he indicated that it was not. . . . His exact
words were, ‘Not quite. They were supposed to reduce the
charges considerably,’ and then he goes on.” The district court
noted that Kirby was then given an opportunity to talk to his
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counsel off the record, and when they were back on the record
the following discussion was had (quoting directly from the
plea hearing):
[Defense counsel]: Your Honor, I think we’ve cleared it
up in speaking with . . . Kirby.
THE COURT: All right. . . . Kirby, have you had an
opportunity to talk to your attorney?
[Kirby]: Yes, sir.
THE COURT: The plea agreement, as outlined by
[the State], is that the plea agreement as you understand
it today?
[Kirby]: Yes, sir.
THE COURT: And do you want the Court to accept
that plea agreement?
[Kirby]: Yes, sir.
THE COURT: Other than this plea agreement, has
anyone connected with law enforcement or the County
Attorney’s Office, or anyone else, made any promises,
threats, or used any force or inducements to get you to
plead no contest to these charges?
[Kirby]: No, sir.
....
THE COURT: Do you still wish to plead no contest to
each charge?
[Kirby]: Yes, sir.
THE COURT: Are you freely, voluntarily, knowingly
and intelligently entering each plea of no contest and
waiving your rights in this matter?
[Kirby]: Yes.
THE COURT: [Defense counsel], do you believe the
pleas of no contest are consistent with the law and
the facts?
[Defense counsel]: I do, Your Honor.
THE COURT: Do you believe your client is making
each of these pleas freely, voluntarily, knowingly and
intelligently?
[Defense counsel]: Yes, I do, Your Honor.
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The district court, in continuing its oral pronouncement on
Kirby’s motion to withdraw plea, found the record clearly
reflected that Kirby’s pleas were freely, voluntarily, knowingly,
and intelligently entered, and that the plea agreement was
outlined clearly in court at the time of the plea hearing. Kirby
indicated that he understood that was the agreement at the time
of the pleas and wanted the court to accept that plea agree-
ment. The court held that Kirby’s motion to withdraw plea was
“overruled and denied.”
Kirby argues that given his confusion as to the plea agree-
ment, he did not give voluntary and knowing pleas of no
contest, and that the district court erroneously applied a height-
ened “manifest injustice” standard rather than a “fair and just”
standard when it denied his motion to withdraw plea. Brief for
appellant at 18. However, his argument that the district court
applied an erroneous standard is not supported by the record.
The district court noted that Kirby initially indicated some
confusion as to the plea agreement, but after conferring with
his counsel stated he understood the agreement and wanted
the court to accept the agreement. The court also considered
that the pleas were entered on December 2, 2014, and that the
motion to withdraw plea was not filed until nearly 17 months
later, on April 25, 2016 (and during the interim Kirby failed
to appear and a warrant was issued for his arrest). Given the
circumstances of this case, and in light of the case law cited
above, Kirby failed to prove by clear and convincing evidence
that he had a “fair and just” reason to withdraw his pleas.
Accordingly, the district court’s denial of Kirby’s motion to
withdraw plea was not an abuse of discretion.
Excessive Sentences.
[7] Kirby asserts that the district court imposed excessive
sentences and did not give proper weight to the relevant sen-
tencing factors. Factors a judge should consider in imposing
a sentence include the defendant’s age, mentality, education,
experience, and social and cultural background, as well as his
or her past criminal record or law-abiding conduct, motivation
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for the offense, nature of the offense, and the amount of vio-
lence involved in the commission of the crime. See State v.
Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
Kirby was 51 years old at the time of the crimes and 54
years old at the time of sentencing. He obtained his GED in
1979 and had been unemployed since 1989. When asked by
the probation officer why he does not work, Kirby said “‘it’s
just not for me’” and stated his family provides for all of his
financial needs. He lives with his father, and his brother pays
for all of his food. According to a letter from the Lancaster
County Department of Community Corrections to the district
court, Kirby helps care for his 84-year-old father, who has
Alzheimer’s disease, and he helps his brother with the fam-
ily farm.
Kirby has been divorced since 1995 and has three grown
children, one of whom is disabled and lives with Kirby’s
ex-wife. Kirby had been in a relationship with the victim in
this case on-and-off since 1997. He reported using marijuana
daily from the age of 15 up until 4 months prior to his presen-
tence investigation (PSI), which took place in July 2016. When
asked how he was able to purchase marijuana since he does not
work, Kirby said, “‘I get money from my brother.’”
Kirby’s criminal history includes convictions for manu-
facturing a controlled substance, possession of a controlled
substance with intent to deliver, possession of drug parapher-
nalia, “Attempt of Class 3A or Class 4 Felony,” disturbing the
peace, numerous traffic violations, and numerous failures to
appear on citations. He has previously been on probation, had
his probation revoked, and was subsequently incarcerated for
1 year.
Regarding his current convictions, Kirby physically assaulted
his then girlfriend, T.G.; threatened to kill her; and damaged
her home. According to her victim impact statement, T.G.
was “traumatized by the incident” wherein she was punched,
choked, and threatened. For several days after the incident,
she was afraid to stay at her house alone. T.G. “felt violated,
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humiliated and didn’t feel safe for quite some time afterward.”
At the time of her victim impact statement, nearly 3 years
had passed since the incident and T.G. had “moved on with
[her] life.”
As part of the PSI for his current conviction, the probation
officer conducted a level of service/case management index.
Kirby scored in the “high risk range” to reoffend. Due to the
nature of the offense, he was also given a specific assess-
ment for domestic violence (the “Domestic Violence Offender
Matrix”) and scored in the “high risk range.”
According to the PSI, Kirby did not want to be considered
for probation and said:
“I would just rather do my time and be done. That is why
I didn’t show up for my first appointment. I thought this
was optional. I didn’t know me not showing up was going
to piss the judge off. I thought if I didn’t want probation
there was no need to come.”
He also did not take responsibility for the present offenses
and told the probation officer that the victim was the one who
assaulted him; when asked about the injuries to the victim
he stated, “‘She was quite capable of doing that to herself.’”
He also denied damaging the home, saying the damage was
already there. Kirby also stated that his brother paid the restitu-
tion, in full.
At the sentencing hearing, defense counsel stated that Kirby
was not requesting probation, but was asking for the imposi-
tion of either a minimal jail sentence or a fine only. Counsel
noted that Kirby was needed to help care for his father and his
daughter, as well as to help his brother with the family farm.
Counsel further noted that restitution for the criminal mischief
charge had been paid in full.
The district court said it considered the PSI, additional let-
ters from various persons (including the victim in the case),
and the comments of defense counsel. The court said, “I can’t
ignore the serious nature of these offenses and the surround-
ing facts and circumstances. When this matter was originally
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set for sentencing, you failed to appear and you were gone for
approximately a year, or a little longer I believe.” The court
found that imprisonment was “necessary for the protection
of the public, because the risk is substantial that during any
period of probation, [Kirby] would engage in additional crimi-
nal conduct, and because a lesser sentence would depreciate
the seriousness of [Kirby’s] crimes and promote disrespect
for the law.” The district court sentenced Kirby to concurrent
sentences of 270 days’ imprisonment on each count, with 11
days’ credit for time served.
At the time of Kirby’s offenses (which occurred before L.B.
605), Class I misdemeanors were punishable by up to 1 year’s
imprisonment, a $1,000 fine, or both. See Neb. Rev. Stat.
§ 28-106 (Cum. Supp. 2014). Kirby’s sentences were within
the permissible sentencing range. Additionally, in exchange for
his pleas, Kirby had one of his counts reduced from a felony
to a misdemeanor, and another felony count was dropped.
Having considered the relevant factors in this case, we find
that Kirby’s sentences are not excessive or an abuse of dis-
cretion and his sentences are therefore affirmed. See State
v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013) (sentence
imposed within statutory limits will not be disturbed on appeal
absent abuse of discretion by trial court); State v. Meehan,
7 Neb. Ct. App. 639, 585 N.W.2d 459 (1998) (sentencing court
in noncapital cases may consider defendant’s nonadjudicated
misconduct in determining appropriate sentence).
Appeal Bond.
Initially, we note that we have found nothing in the record
to suggest that Kirby motioned the district court to reduce his
appeal bond. The State asserts that Kirby’s failure to first seek
reduction of his bond in the district court precludes him from
challenging the bond amount on appeal; however, the State
provides us no authority to support its assertion. Accordingly,
we will address the merits of Kirby’s assigned error regard-
ing the appeal bond. Kirby contends that the district court set
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an unreasonable appeal bond and “[t]his effectively failed to
suspend the sentence pending the outcome of this appeal,”
and that this “was a clear abuse of discretion.” Brief for
appellant at 18. He argues that “[t]he establishment of a
quarter million dollar bond on an appeal of two misdemeanor
convictions is an excessive bond” in violation of Neb. Rev.
Stat. § 29-2302 (Reissue 2016), as well as constitutional pro-
visions protecting individuals from excessive bail. Brief for
appellant at 18.
Section 29-2302 states:
The execution of sentence and judgment against any
person or persons convicted and sentenced in the district
court for a misdemeanor shall be suspended during an
appeal to the Court of Appeals or Supreme Court. The
district court shall fix the amount of a recognizance,
which in all cases shall be reasonable, conditioned that
the appeal shall be prosecuted without delay and that in
case the judgment is affirmed he, she, or they will abide,
do, and perform the judgment and sentence of the dis-
trict court.
See, also, U.S. Const. amend. VIII (“[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted”); Neb. Const. art. I, § 9 (“[a]ll
persons shall be bailable by sufficient sureties, except for trea-
son, sexual offenses involving penetration by force or against
the will of the victim, and murder, where the proof is evident
or the presumption great. Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punish-
ment inflicted”).
Since no Nebraska case law specifically addresses factors
to consider for appeal bonds set by the district court in mis-
demeanor cases under § 29-2302, our review is guided by the
plain language of the statute, along with other statutes and case
law pertinent to appeal bonds in criminal cases.
[8] We preliminarily observe that Neb. Rev. Stat. § 29-901
(Reissue 2016), which requires release on personal recognizance
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or bond for “[a]ny bailable defendant,” unless otherwise
exempted, only applies to cases before judgment. “A bond to
guarantee the appearance of a defendant at pretrial proceedings
and at trial is distinct from an appeal bond after conviction.”
State v. Hernandez, 1 Neb. Ct. App. 830, 834, 511 N.W.2d 535,
538 (1993). A convicted person is treated differently than “one
who is awaiting trial and still presumed innocent.” Id. We note
that the Nebraska Legislature recently amended § 29-901 to
require a court to consider all methods of bond and conditions
of release to avoid pretrial incarceration, including consider-
ation of the defendant’s financial ability to pay a bond and
consideration of “the least onerous” of conditions to “reason-
ably assure the defendant’s appearance or that will eliminate
or minimize the risk of harm to others or the public at large.”
2017 Neb. Laws, L.B. 259 § 2 (effective August 24, 2017).
While these amendments may impact consideration of bonds
pertinent to pretrial proceedings, the present matter involves
the propriety of a bond ordered after a conviction. And as this
court stated in State v. Hernandez, supra, a pretrial bond and
an appeal bond after conviction are treated differently. We
turn our attention to statutes and cases dealing with bonds
after conviction.
With regard to an appeal bond after a felony conviction, our
Supreme Court has stated that the
right to bail, after conviction, is discretionary and not
absolute. Once a defendant has been convicted of the
felony charged, he is not entitled to be released on bail.
Such determination is left to the discretion of the trial
court who may prescribe the amount of the bond and the
conditions thereof, including a requirement that the full
amount of the bond be posted.
State v. Woodward, 210 Neb. 740, 747, 316 N.W.2d 759, 763
(1982). See, also, State v. Dawn, 246 Neb. 384, 519 N.W.2d
249 (1994) (no abuse of discretion in setting appeal bond
at $50,000 when defendant had failed to appear after being
released on bail in two prior cases).
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[9] The above-cited cases make it clear that the setting of
an appeal bond after a felony conviction is discretionary to the
district court. We do note, however, that there is some differ-
ence in the statutory language regarding postjudgment bonds
in felony cases and misdemeanor cases. Regarding a felony
conviction, Neb. Rev. Stat. § 29-2303 (Reissue 2016) states
in part:
Whenever a person shall be convicted of a felony, and
the judgment shall be suspended as a result of the notice
of appeal, it shall be the duty of the court to order the
person so convicted into the custody of the sheriff, to be
imprisoned until the appeal is disposed of, or such person
is admitted to bail.
Whereas, following a misdemeanor conviction, § 29-2302
states in part, “The execution of sentence and judgment against
any person or persons convicted and sentenced in the district
court for a misdemeanor shall be suspended during an appeal
to the Court of Appeals or Supreme Court.” Therefore, while
the “judgment shall be suspended” on appeal in felony cases,
the “execution of sentence and judgment . . . shall be sus-
pended” on appeal in misdemeanor cases. In misdemeanor
cases, the district court “shall fix the amount of a recogni-
zance, which in all cases shall be reasonable.” § 29-2302.
Accordingly, § 29-2302 requires that a reasonable bond be set
following a misdemeanor conviction in district court, whereas,
§ 29-2303 does not contain that same requirement following a
felony conviction.
Interestingly, in appeals in criminal cases from county court
to district court, the county court may exercise its discretion
with regard to bail. Specifically, the execution of a sentence
to a period of confinement shall be suspended only if “the
county court, in its discretion, allows the defendant to con-
tinue at liberty under the prior recognizance or bail,” or if
“the defendant enters into a written recognizance to the State
of Nebraska, with surety or sureties approved by the county
court or with a cash bond, filed with the clerk of the county
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court.” Neb. Rev. Stat. § 25-2730(3) (Reissue 2016). Further,
when a notice of appeal is filed, “the county court shall fix
the amount of the recognizance or cash bond, which shall be a
reasonable amount.” Id. Additionally, § 25-2730(6) allows the
district court to modify an appeal bond “on motion after notice
and hearing and upon such terms as justice shall require,” and
our Supreme Court has indicated that such modifications are
“consistent with the general discretion of the district court to
prescribe the amount and conditions of an appeal bond in a
criminal case.” State v. Griffin, 270 Neb. 578, 583, 705 N.W.2d
51, 56 (2005).
[10] We conclude that the plain language of § 29-2302
requires that a bond be set in the present matter, because the
execution of sentence and judgment against any person con-
victed and sentenced in the district court for a misdemeanor
“shall be suspended” during an appeal to this court or the
Supreme Court and because the district court “shall fix the
amount of a recognizance.” Further, the amount of the appeal
bond should be reasonable. Our review of other related statutes
and case law leads to the conclusion that reasonableness of the
appeal bond amount is determined under the general discretion
of the district court. Accordingly, we review the district court’s
decision regarding the amount of the appeal bond in this case
for an abuse of discretion.
[11] In considering the reasonableness of the bond amount,
we note that it has previously been argued that an indi-
gent defendant could not post a $500 appearance bond and
that this was excessive and violative of the federal and state
Constitutions. In State v. Howard, 185 Neb. 583, 584-85, 177
N.W.2d 566, 567-68 (1970), our Supreme Court stated:
Apparently it is appellant’s contention that for most
indigents any bail would be excessive. When an offense
charged is a bailable one, discretion rests with the judge
in fixing the amount of the recognizance, but this dis-
cretion is a judicial one. The question to be deter-
mined in every case that is bailable is not whether the
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defendant may make bail, but whether or not the bail
demanded is unreasonable and disproportionate to the
crime charged. . . .
While the pecuniary circumstances of a prisoner should
be considered in determining the amount of the bail, that
in itself is not controlling. If that were determinative of
the question, a defendant without means or friends would
be entitled to be discharged on his recognizance regard-
less of the risk involved. As we said in In re Scott, [38
Neb. 502, 508-09, 56 N.W. 1009, 1010 (1893)]: “Many
things should be taken into consideration in fixing the
amount of bail, such as the atrocity of the offense; the
penalty which the law authorizes to be inflicted in case
of a conviction; the probability of the accused appearing
to answer the charge against him, if released on bail; his
pecuniary condition and the nature of the circumstances
surrounding the case.”
Definitely, a prior criminal record is an important
factor to be considered. There is no merit to appellant’s
claim of the requirement of an excessive bond.
Notably, the factors discussed in the above-quoted cases
were considered in a prejudgment context, and we offer no
opinion as to any impact the amendments contained in L.B.
259 may have on bail considerations in the prejudgment con-
text. That said, we see no reason why the foregoing consider-
ations for fixing the amount of bail in a prejudgment context
cannot similarly be considered in our review of the reason-
ableness of Kirby’s appeal bond under § 29-2302 following
his misdemeanor convictions. In particular, we consider the
atrocity of Kirby’s offenses, the probability of Kirby appear-
ing to serve his sentences following the conclusion of his
appeal, Kirby’s prior criminal history, and the nature of other
circumstances surrounding the case.
Kirby pled no contest to two Class I misdemeanors, one
of which was a crime of violence against his then girlfriend.
Kirby physically assaulted his girlfriend; he punched her in
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the face, and forced her onto a bed, where he got on top of
her, put his knees on her chest, and put one hand around her
neck and the other on her head, causing significant red marks
on her neck and her face. While assaulting his girlfriend
of 15 years in this manner, he also threatened to kill her.
Additionally, Kirby failed to appear for sentencing in February
2015 and a warrant was issued for his arrest. He remained at
large for more than a year and was not arrested on the warrant
until April 2016. He was ultimately sentenced in August 2016.
As noted by the State, the district court did not make it impos-
sible for Kirby to post bail, but given Kirby’s avoidance of
sentencing for over a year after conviction, the “court ensured
that Kirby would lose a significant sum if he once again failed
to appear and went on the run.” Brief for appellee at 8. We
also take into account Kirby’s prior criminal history, which
includes numerous failures to appear on citations and the revo-
cation of probation. Additionally, Kirby has been unemployed
since 1989, he gets money to support his marijuana use from
his brother, his family provides for all his financial needs, his
brother paid the restitution in this case, and Kirby failed to
take responsibility for the present offenses. In other words,
Kirby’s unwillingness to be accountable, combined with the
other factors noted, make the appeal bond in this case reason-
able under these circumstances. We cannot say that the district
court abused its discretion when it set the appeal bond “in the
amount of $250,000 Reg. 10% bond.” Accordingly, we affirm
the appeal bond.
CONCLUSION
For the reasons set forth above, we affirm the decision of
the district court.
A ffirmed.