State v. Workman ( 2014 )

Decisions of the Nebraska Court of Appeals
STATE v. WORKMAN 223
Cite as 22 Neb. Ct. App. 223
(1928) (stating that under identical statutory language, plaintiff
may dismiss his action as matter of right before final submis-
sion if it does not prejudice defendant). The Halford court
ultimately concluded that the plaintiff had a right to dismiss
its case because it would not result in the loss of a substan-
tial right of the defendant because he had not filed a setoff
or counterclaim.
Based upon the facts of this case, the Sartains no longer had
an absolute right to dismiss without prejudice because there
had been a final submission to the court. Therefore, we find
the trial court did not err in striking the notice of dismissal.
The Sartains have not appealed the granting of the defendants’
motions for summary judgment, and therefore that issue is not
before us.
CONCLUSION
Once the motion for summary judgment was taken under
advisement, there was a final submission of the case and the
Sartains no longer had an absolute right to dismiss their com-
plaint without prejudice. The trial court did not err, therefore,
in striking their notice to dismiss.
Affirmed.
State of Nebraska, appellee, v.
Mathew W. Workman, appellant.
___ N.W.2d ___
Filed July 29, 2014. No. A-12-888.
1. Pleas: Appeal and Error. A trial court is given discretion as to whether to accept
a guilty plea; an appellate court will overturn that decision only where there is an
abuse of discretion.
2. Courts: Words and Phrases. Drug court is a postplea or postadjudicatory drug
and alcohol intensive supervision treatment program for eligible offenders.
3. Courts: Pleas. A drug court program participant pleads guilty and agrees to the
terms and conditions of the program in exchange for the possibility of avoiding
sentencing and, oftentimes, being allowed to withdraw the plea upon successful
completion of the program.
4. Courts: Convictions: Sentences. If a drug court participant is terminated from
the program or withdraws before successful completion, then the conviction
stands and the case is transferred back to the original court for sentencing.
Decisions of the Nebraska Court of Appeals
224 22 NEBRASKA APPELLATE REPORTS
5. Pleas. Before accepting a guilty plea, the trial court must determine, among other
things, whether a factual basis for the plea exists.
6. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it.
Appeal from the District Court for Sarpy County: William
B. Zastera, Judge. Judgment reversed, sentences vacated, and
cause remanded for further proceedings.
Patrick J. Boylan, Chief Deputy Sarpy County Public
Defender, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
P er Curiam.
INTRODUCTION
In our previous opinion, State v. Workman, 21 Neb. Ct. App.
524, 842 N.W.2d 108 (2013), filed on December 10, 2013,
we reversed the order of the district court for Sarpy County
which terminated Mathew W. Workman’s participation in the
drug court program, due to the court’s failure to provide a
written statement as to the evidence relied on and the reasons
for terminating his participation in that program. Workman
subsequently filed a motion for rehearing. We now withdraw
our prior opinion in its entirety and issue this opinion in its
place, wherein we reverse the orders of the district court which
accepted Workman’s guilty pleas to the underlying charges
of possession of a controlled substance and which terminated
Workman’s participation in the drug court program. Because
there was not a factual basis given for Workman’s pleas of
guilty to the underlying charges of possession of a controlled
substance, we reverse and vacate Workman’s convictions and
sentences, and we remand the cause to the district court for
further proceedings.
BACKGROUND
Workman was originally charged in the district court with
three counts of delivery of a controlled substance, each a
Class III felony. Pursuant to a plea agreement, the charges
Decisions of the Nebraska Court of Appeals
STATE v. WORKMAN 225
Cite as 22 Neb. Ct. App. 223
were amended to three counts of possession of a controlled
substance, each a Class IV felony. Arraignment on the amended
information was continued to determine whether Workman
could be accepted into drug court. On November 16, 2009,
Workman pled guilty to the amended charges. At the plea
hearing, Workman was asked if he understood that if he can-
not complete drug court, he could be found guilty of three
Class IV felonies, each punishable by a fine of up to $10,000
or confinement for a period of up to 5 years, along with other
consequences, to which he responded in the affirmative. After
advising Workman of his various constitutional rights, the
court found that Workman’s pleas were freely, voluntarily,
intelligently, and knowingly made, and the court accepted the
pleas. The court then stated that it would “defer factual basis
for the completion of the plea, pending [Workman’s] Drug
Court.” Workman’s attorney did not object to the deferral of
the factual basis or to the acceptance of Workman’s pleas
without a factual basis. The docket entry from November 16
filed in the district court shows that Workman entered pleas of
guilty, the pleas were accepted, the factual basis was deferred,
and he was referred to the drug court.
On February 21, 2012, the State filed a motion to terminate
Workman’s participation in the drug court program for viola-
tion of certain conditions of his drug court contract, the details
of which we need not recite here. A hearing on the motion
to terminate was held on March 6, at which Workman was
present and represented by counsel. We need not detail the
evidence that was adduced at the hearing for purposes of this
opinion. However, we note that at no time during the hearing
did Workman’s attorney raise the issue that a factual basis had
not been given prior to acceptance of the underlying pleas or
that Workman had not been adjudged guilty of the underlying
charges. At the conclusion of the hearing, the district court
concluded that Workman’s termination from participation in
the drug court program was appropriate. A docket entry was
made on March 6 by the district judge, finding that Workman
was in violation of certain conditions in his drug court con-
tract and that he should be terminated from participating in
the drug court program. The entry then set the matter for a
Decisions of the Nebraska Court of Appeals
226 22 NEBRASKA APPELLATE REPORTS
later sentencing hearing. Workman filed an appeal from the
March 6 docket entry which we dismissed on April 13 for
lack of jurisdiction. After entry of our mandate, Workman was
sentenced on August 27 to concurrent terms of 20 months’
to 5 years’ imprisonment on his original drug charges. At the
sentencing hearing, Workman’s attorney did not raise the issue
of the district court’s lack of authority to sentence Workman;
instead, Workman’s attorney agreed that there was no legal
reason why sentence could not be pronounced.
In his original brief on appeal, Workman assigned as error
that (1) the district court did not comply with the procedural
and substantive due process safeguards required by State v.
Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011), thereby
rendering erroneous the termination of Workman’s participa-
tion in the drug court program, and (2) even if the State v.
Shambley due process protections were honored, any violations
by Workman of his drug court contract did not authorize impo-
sition of a sentence, because he had agreed to the terms of a
quasi-contract and not a sentence of probation.
In our previous opinion, we rejected Workman’s argument
that his due process rights were violated by not being provided
with written notice of the hearing on the State’s motion to ter-
minate his participation in the drug court program. However,
we found that the district court failed to provide Workman
with a written statement as to the evidence relied on and the
reasons for revoking the conditional liberty of participation in
the drug court program and, as such, violated this due process
right enunciated in State v. Shambley, supra. Accordingly, we
reversed the district court’s order of termination of Workman’s
participation in the drug court program and remanded the
cause with instructions to the district court to enter an order
which contains a written statement as to the evidence relied
on and the reasons for revoking the conditional liberty of his
participation in the drug court program, based upon the record
made at the previous hearing. Because we reversed the order of
termination and remanded the cause for entry of a new order
which comported with due process, we also vacated the sen-
tences imposed. As a result, we were not obligated to address
Workman’s second assigned error, although we noted that a
Decisions of the Nebraska Court of Appeals
STATE v. WORKMAN 227
Cite as 22 Neb. Ct. App. 223
district court has authority to impose a criminal sentence if a
drug court participant is terminated from the drug court pro-
gram. See State v. Shambley, supra.
Workman moved for rehearing. In his brief in support of the
motion, he assigned as error for the first time that the district
court did not have authority to impose a criminal sentence on
him following his termination from the drug court program,
because his pleas had not been accepted and he had not been
found guilty at the November 16, 2009, hearing. We granted
the motion for rehearing.
ASSIGNMENTS OF ERROR
On rehearing, Workman assigns that this court (1) mis-
takenly construed his first assignment of error, (2) failed to
correctly analyze the issue of the district court’s authority
to impose a criminal sentence, and (3) failed to consider his
numerous citations to the record of the termination hear-
ing and never cited to anything in the record to support
its conclusions.
STANDARD OF REVIEW
[1] A trial court is given discretion as to whether to accept a
guilty plea; an appellate court will overturn that decision only
where there is an abuse of discretion. State v. Lassek, 272 Neb.
523, 723 N.W.2d 320 (2006); State v. Brown, 268 Neb. 943,
689 N.W.2d 347 (2004).
ANALYSIS
We turn to Workman’s second assigned error on rehearing,
as it is dispositive of this appeal. Specifically, Workman argues,
for the first time, that the district court had no authority to
impose a sentence on him because—unlike the circumstances
in State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011)—
his pleas were never accepted and he was not adjudged guilty
at the proceeding on November 16, 2009.
We disagree with Workman’s contention that his pleas were
not accepted. The district court, both orally at the conclu-
sion of the hearing and in its written docket entry, accepted
Workman’s pleas. Workman goes on to argue, however, that
he was never adjudged guilty and that “[i]t is axiomatic that
Decisions of the Nebraska Court of Appeals
228 22 NEBRASKA APPELLATE REPORTS
without a factual basis there is no plea.” Brief for appellant on
rehearing at 6.
[2-4] Drug court is “a postplea or postadjudicatory drug and
alcohol intensive supervision treatment program for eligible
offenders.” Neb. Ct. R. § 6-1206. See State v. Shambley, supra.
A drug court program participant pleads guilty and agrees to the
terms and conditions of the program in exchange for the possi-
bility of avoiding sentencing and, oftentimes, being allowed to
withdraw the plea upon successful completion of the program.
State v. Shambley, supra. If the participant is terminated from
the program or withdraws before successful completion, then
the conviction stands and the case is transferred back to the
original court for sentencing. Id.
[5] Having reviewed the record, we agree that there was
not a factual basis given prior to the acceptance of Workman’s
guilty pleas. State v. Irish, 223 Neb. 814, 394 N.W.2d 879
(1986), sets forth the requirements for finding that a guilty
plea has been entered freely, intelligently, voluntarily, and
understandingly. Specifically, the court must inform and
examine the defendant to determine that he or she under-
stands (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. Workman does not contend that
these advisements were not given, and the record shows that
the court adequately examined Workman regarding the above
matters. However, State v. Irish also requires that the record
must show that there is a factual basis for the plea and that
the defendant knew the range of penalties for the crime with
which he or she was charged. Although Workman was advised
of the range of penalties, no factual basis was given for the
pleas. Before accepting a guilty plea, the trial court must
determine, among other things, whether a factual basis for the
plea exists. State v. Cervantes, 15 Neb. Ct. App. 457, 729 N.W.2d
686 (2007).
[6] Accordingly, we conclude that without a factual
basis, the district court erred in accepting Workman’s guilty
pleas. We therefore reverse the orders of the district court
which accepted Workman’s guilty pleas and terminated his
Decisions of the Nebraska Court of Appeals
BOTT v. HOLMAN 229
Cite as 22 Neb. Ct. App. 229
participation in the drug court program. We further reverse
and vacate Workman’s convictions and sentences, and we
remand the cause to the district court for further proceedings.
We need not address Workman’s remaining assigned errors.
An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it. State
v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013).
CONCLUSION
The district court erred in accepting Workman’s pleas of
guilty without the existence of a factual basis for the pleas. We
therefore reverse the orders of the district court which accepted
Workman’s guilty pleas and terminated his participation in the
drug court program, we reverse and vacate Workman’s convic-
tions and sentences, and we remand the cause to the district
court for further proceedings to allow Workman to move to
withdraw his previous pleas of guilty.
Judgment reversed, sentences vacated, and
cause remanded for further proceedings.
Jeff Bott Victoria Bott, husband and wife,
and
appellants, v. Thomas L. Holman and Sharon
A. Holman, husband and wife, appellees.
___ N.W.2d ___
Filed July 29, 2014. No. A-13-301.
1. Actions: Rescission: Equity. An action for rescission sounds in equity.
2. Equity: Appeal and Error. In an appeal of an equity action, an appellate court
tries factual questions de novo on the record, reaching a decision independent of
the findings of the trial court. Where credible evidence is in conflict on a material
issue of fact, the appellate court will consider and may give weight to the fact the
trial judge heard and observed the witnesses and accepted one version of the facts
rather than another.
3. Actions: Fraud: Proof. To maintain an action for fraudulent misrepresentation,
a plaintiff must allege and prove the following elements: (1) that a representa-
tion was made; (2) that the representation was false; (3) that when made, the
representation was known to be false or made recklessly without knowledge of
its truth and as a positive assertion; (4) that it was made with the intention that
the plaintiff should rely upon it; (5) that the plaintiff reasonably did so rely; and
(6) that the plaintiff suffered damage as a result.