State v. Starkey ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. STARKEY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JEREMY STARKEY, APPELLANT.
Filed September 28, 2021. No. A-21-336.
Appeal from the District Court for Saunders County: CHRISTINA M. MARROQUIN, Judge.
Affirmed.
Thomas J. Klein, Saunders County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Jeremy Starkey appeals his plea-based conviction for attempted sex offender registry
violation. He assigns that the district court for Saunders County abused its discretion in not
allowing him to withdraw his plea and that the sentence imposed was excessive. We affirm.
BACKGROUND
Due to a previous conviction in Wisconsin, Starkey was required to register as a sex
offender in at least October of each year. In October 2020, Starkey failed to properly register with
the Saunders County sheriff’s office as required. On November 4, he was arrested for failing to
register as a sex offender.
On February 25, 2021, an information was filed against Starkey for the charge of sex
offender registry violation, a Class IIIA felony. Neb. Rev. Stat. § 29-4011(1) (Reissue 2016). On
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March 1, an amended information was filed, reducing the charge to attempted sex offender registry
violation, a Class IV felony. Id.; Neb. Rev. Stat. § 29-201(4) (Reissue 2016). In exchange for the
reduced charge, Starkey agreed to plead guilty to the amended information. No formal agreements
were made regarding sentencing.
During the plea hearing on March 1, 2021, Starkey pled guilty to the amended information.
The district court advised Starkey of the rights he would be waiving by pleading guilty, including
his presumption of innocence, the right to trial, confrontation, right to remain silent, etc. The
district court found, beyond a reasonable doubt, that Starkey understood his rights; that he freely,
voluntarily, knowingly, and intelligently waived them; that he understood the consequence of his
waiver; and that the district court accepted his waiver of those rights. The district court asked
whether Starkey had told his attorney everything he thought his attorney should know about his
case, and whether Starkey thought his attorney was competent. Starkey answered both questions
in the affirmative.
At the end of the plea hearing, the district court directed Starkey to meet with probation to
complete the presentence investigation process. The appointment was initially scheduled for
March 15, 2021, but Starkey cancelled that appointment due to inclement weather and a death in
his fiance’s family. It was rescheduled for March 29, and Starkey failed to appear for the
appointment. The probation officer attempted to call Starkey, but could not reach him. As of April
5, when the presentence report was created, Starkey had failed to contact the probation office
regarding the missed appointment.
During the sentencing hearing on April 12, 2021, Starkey requested to withdraw his guilty
plea because he had not had a chance to talk to his diversion officer in Wisconsin about his plea.
He was under the impression that, as a result of his guilty plea to the current charge, his parole or
diversion status would be revoked in Wisconsin. The district court found that the reason Starkey
provided did not constitute a reason to allow him to withdraw his plea when it was voluntarily and
knowingly given. It therefore denied his request.
The district court sentenced Starkey to 60 days’ incarceration and post-release supervision
was waived. In the judgment and sentence, the district court stated it relied upon the presentence
report, together with all other relevant information and facts. In explaining its reasoning for the
sentence given, the court noted that Starkey had failed to attend the presentence investigation
meeting, he had two prior registry violations, he has an active warrant in another state, and he was
previously extradited. The district court stated that Starkey was not a proper candidate for
probation because it was likely that he would continue to violate the law if placed on probation,
and a lesser sentence would depreciate the seriousness of the crime and promote disrespect for the
law. Starkey timely appealed.
ASSIGNMENTS OF ERROR
Restated, Starkey assigns that the district court erred in (1) not allowing him to withdraw
his guilty plea prior to sentencing and (2) imposing an excessive sentence.
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STANDARD OF REVIEW
An appellate court will not disturb the trial court’s ruling on a presentencing motion to
withdraw a guilty or no contest plea absent an abuse of discretion. State v. Canaday, 307 Neb. 407,
949 N.W.2d 348 (2020).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). An
abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.ANALYSIS
Denial of Motion to Withdraw Plea.
Starkey assigns that the district court erred in not allowing him to withdraw his guilty plea
prior to sentencing. We disagree.
After the entry of a plea of guilty or no contest, but before sentencing, a court, in its
discretion, may allow a defendant to withdraw his or her plea for any fair and just reason, provided
that the prosecution has not been or would not be substantially prejudiced by its reliance on the
plea entered. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015). 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 right to withdraw a
plea previously entered is not absolute, and, in the absence of an abuse of discretion on the part of
the trial court, refusal to allow a defendant’s withdrawal of a plea will not be disturbed on appeal.
State v. Ortega, supra. The burden is on the defendant to establish by clear and convincing
evidence the grounds for withdrawal of a plea. Id.
Starkey argues that he should have been allowed to withdraw his guilty plea because he
was on diversion or probation in Wisconsin, and he had not had a chance to discuss his guilty plea
with his diversion officer in Wisconsin. However, Starkey was aware of the potential violation on
November 4, 2020, when he was arrested. The information was filed on February 25, 2021. The
amended information, reducing the charge, was filed March 1, 2021, and his plea hearing was held
on the same day. Therefore, Starkey had from November 4, 2020 until March 1, 2021, to talk with
his Wisconsin diversion officer before entering into the plea agreement.
Prior to accepting Starkey’s plea, the district court questioned Starkey to determine whether
his plea was offered freely, voluntarily, knowingly, and intelligently, and confirmed that it was.
Starkey’s failure to timely consult with his Wisconsin diversion officer does not constitute a “fair
and just reason” such that it was an abuse of discretion by the district court to deny his motion to
withdraw his plea. The court had no obligation to advise Starkey that he should consult with his
diversion officer prior to entering a plea; rather, the responsibility was his. Ignorance of a collateral
effect of a plea is not necessarily a basis upon which a court must allow the withdrawal of a plea.
See State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002) (no abuse of discretion in court’s
refusal to allow withdrawal of plea on basis that defendant was not advised of sex offender
registration requirement). We therefore affirm the court’s denial of Starkey’s motion to withdraw
his plea.
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Excessive Sentence.
Starkey assigns that the district court abused its discretion by imposing an excessive
sentence. Starkey was found guilty of attempted violation of sex offender registration act, a Class
IV felony. Starkey was sentenced to 60 days in the Saunders County jail, with credit for 2 days
previously served.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020). In determining a
sentence to be imposed, relevant factors customarily considered and applied are the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7)
the nature of the offense and (8) the amount of violence involved in the commission of the crime.
Id. The appropriateness of a sentence is necessarily a subjective judgment and includes the
sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. Id.The district court did not abuse its discretion in sentencing Starkey to 60 days’
incarceration instead of probation. An abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020). In
explaining its reasoning for the sentence given, the district court noted that Starkey failed to appear
for the presentence investigation meeting, he had two prior registry violations, he has an active
warrant in another state, and he was extradited in the past. The court also noted that the registry is
for a purpose, it is not optional. Based on these factors, the court found he was not a candidate for
probation, especially considering Starkey did not cooperate with the presentence investigation.
Starkey acknowledges that the sentence pronounced, 60 days’ incarceration, is within the
statutory limits. The sentence of 60 days’ incarceration was imposed in part due to Starkey’s failure
to comply with a court ordered presentence report, past failures to comply with the registry
requirements, and Starkey having an active warrant in another state. The district court’s decision
is not untenable, unreasonable, nor was its sentence clearly against justice or conscience, reason,
and evidence. We find no abuse of discretion in the sentence imposed.
Starkey argues that because his attempted failure to register was not a violent crime and no
person was physically injured as a result of his failure, the district court should have sentenced
him to probation instead. While we agree that his crime was not a violent one, other factors weigh
against probation. His failure to attend the rescheduled presentence investigation meeting, despite
being told by the district court to complete the meeting during the plea hearing, is indicative of the
likelihood that Starkey would be noncompliant with the conditions of probation. With his lack of
cooperation, along with prior violations of the same law and an active arrest warrant, we find that
the district court did not abuse its discretion in sentencing Starkey to 60 days’ incarceration instead
of probation.
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CONCLUSION
The district court did not abuse its discretion in denying Starkey’s request to withdraw his
guilty plea or in its sentencing of him.
AFFIRMED.
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