State v. Hinds ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/12/2023 08:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
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STATE V. HINDS
Cite as 32 Neb. App. 246State of Nebraska, appellee, v.
Oneil Hinds, appellant.
___ N.W.2d ___
Filed September 12, 2023. No. A-22-762.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
5. Criminal Law: Courts: Appeal and Error. When deciding appeals
from criminal convictions in county court, an appellate court applies
the same standards of review that an appellate court applies to decide
appeals from criminal convictions in district court.
6. Pleas. After the entry of a plea of guilty or no contest, but before sen-
tencing, 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.
7. Pleas: Proof. The burden is upon the defendant to establish by clear and
convincing evidence the grounds for withdrawal of a plea.
Appeal from the District Court for Douglas County, Timothy
P. Burns, Judge, on appeal thereto from the County Court
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STATE V. HINDS
Cite as 32 Neb. App. 246for Douglas County, Stephanie R. Hansen, Judge. Judgment
of District Court reversed and remanded with directions.
Andrea Finegan McChesney, of M | F Law Omaha, for
appellant.
No appearance by appellee.
Pirtle, Chief Judge, and Moore and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Oneil Hinds appeals from an order of the Douglas County
District Court, which affirmed Hinds’ conviction and sentence
in the Douglas County Court for assault and battery under the
Omaha city code. Hinds challenges the county court’s denial of
his motion to withdraw his no contest plea and argues that the
county court imposed an excessive sentence. For the reasons
that follow, we reverse, and remand with directions to grant
Hinds’ motion to withdraw his plea.
BACKGROUND
At the outset, we note that the present case involves
an appeal from the district court acting as an intermediate
appellate court. Under Neb. Ct. R. App. P. § 2-105(B)(3)
(rev. 2023):
(a) Where an appeal is taken from a district court act-
ing as an intermediate appellate court, the clerk of the
district court shall transmit to the Clerk without a request
by appellant:
(i) the bill of exceptions of the county court or other
tribunal inferior to the district court which is the official
record of the county court or other tribunal proceed-
ing, and
(ii) any supplemental bills of exceptions from the
county court or inferior tribunal which were reviewed by
the district court.
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STATE V. HINDS
Cite as 32 Neb. App. 246(b) No specific request for the transmission of the
official record of the county court or inferior tribunal
bills of exceptions shall be required by appellant, and
such bills of exceptions shall not be included as an
exhibit in any bill of exceptions in the district court.
Accordingly, the bill of exceptions of the county court
was prepared and transmitted to this court by operation of
this rule.
In July 2021, the State filed a criminal complaint in the
county court, alleging that Hinds committed “Assault and
Battery (Sexual Assault - Touch)” in violation of Omaha Mun.
Code ch. 20, art. IV, div. 1, § 20-61 (1980). Specifically, the
State alleged that Hinds
did unlawfully, purposely or knowingly: (a) strike or
attempt to strike [J.B.] with intent to cause bodily injury
or (b) cause or attempt to cause bodily injury to [J.B.] or
(c) place [J.B.] in fear of imminent bodily harm or (d)
touch the sexual or intimate parts of the body of [J.B.]
without his/her consent for the purpose of arousing or
gratifying the sexual desire of either party.
Hinds appeared before the county court and pled not guilty.
The case came on for a bench trial in October 2021; however,
following the State’s opening statement and a brief consulta-
tion with counsel, Hinds advised the court that he intended
to plead no contest. The court then advised Hinds of the
possible penalties, including that “assault and battery under
the city code [inter alia] does subject you to the Nebraska
sex offender registry.” Hinds responded, “Oh, no, no, no, no,
no.” The State interjected, “If we stipulate to the factual basis
and then agree that we’d make it a non-registerable offense,
I’d be happy . . . to agree to that.” Defense counsel agreed,
stating that “we are actually stipulating to the factual basis,
and going to agree that this is going to be a non-registerable
offense. That was the plan.” The court began to explain that
the dispositive question was whether the factual basis con-
tained a “sexual component,” but Hinds interrupted the court
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Cite as 32 Neb. App. 246and stated, “I want to take it to trial then.” The court then
finished its explanation as follows:
[I]f the factual basis does not contain a sexual compo-
nent, then I can go forward and assume it’s not a sexual
offense. But if it contains a sexual component, I would
— I believe that [it is] my duty . . . to place you on the
sex offender registry, so I’m giving you that heads-up. It’s
up to these guys what they’re going to tell me, but I’m
telling you, right now, so that there’s no surprises later
. . . if there’s a part of that factual basis that contains a
sexual element, then I believe I have to place you on the
sex offender registry. So, I’m just making sure that that’s
crystal clear to everyone, whether it is the state or the
defense or [Hinds].
Thereafter, the court advised Hinds of his rights and the fol-
lowing exchange occurred on the record:
[Court:] Okay. And how do you plead to Count 1:
Assault and Battery under the city code?
[Prosecutor:] Judge, we have agreed to stipulate that
there is a factual basis to constitute all the elements of
this crime.
[Hinds:] Yes, Your Honor.
[Court:] So how do you plead?
[Hinds:] No contest.
....
[Court:] And do you have a stipulated factual basis that
you want the Court to receive?
[Prosecutor:] Yes, Your Honor. I was a little prema-
ture, I apologize. That’s what we’re asking the Court
here today.
[Court:] Okay. And — and what specifically — because
it’s charged as assault and battery, sexual assault, touch.
[Prosecutor:] That’s correct.
[Court:] Are you okay with that, [defense counsel]?
[Defense counsel:] We will stipulate.
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STATE V. HINDS
Cite as 32 Neb. App. 246[Court:] That it’s an assault and battery, sexual assault,
touch?
[Defense counsel:] That’s correct.
....
[Court:] Okay. [To Hinds] And is that your agreement,
that you’re stipulating that the state could prove that
on May 14th, 2021, within the city of Omaha, Douglas
County, Nebraska, that you purposely or knowingly
attempted to strike [J.B.] with the intent to cause bodily
injury, or cause or attempt to cause bodily injury to
[J.B.], or place [J.B.] in fear of imminent bodily harm,
or touch the sexual or intimate parts of the body of
[J.B.] without her consent?
[Defense counsel:] Judge, we’re going to stipulate that
the elements would be met under 20-61, subsection 3.
[Court:] Do you have that — I mean, do you have
what subsection 3 is? I mean, I just have the complaint
and it says 20-61, subsection 3, which has the A, B, C,
and D.
[Defense counsel:] I think that’s on the (indiscernible)
as well.
[Court:] Okay. All right. And then the Court will
accept the stipulation, and does find that your plea and
waiver of rights have been made knowingly, intelligently,
and voluntarily, and I’ll find and adjudge you guilty of
assault and battery, sexual touch, under . . . 20-61, sec-
tion 3.
Prior to sentencing, it became apparent that the county
court interpreted the parties’ stipulation to be that a factual
basis existed under each subsection of § 20-61, including sub-
section (d) regarding nonconsensual sexual touch. Hinds filed
a motion to withdraw his no contest plea, alleging that “[t]he
parties agree there are a number of errors on the face of the
criminal complaint [and] further agree there are a number of
prejudicial errors from a review of the digital record of the
[plea] hearing.” Primarily, Hinds alleged confusion regarding
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Cite as 32 Neb. App. 246the nature of the intended plea agreement, as the parties had
“crafted a plea agreement where [Hinds] was to enter a plea
of no contest to Assault & Battery under [§ 20-61(c)]” and
that “the factual basis would be stipulated to by both parties”
so as to avoid triggering the requirements of the Nebraska’s
Sex Offender Registration Act (SORA). See Neb. Rev. Stat.
§ 29-4001 et seq. (Reissue 2016 & Cum. Supp. 2022).
The motion pointed out that “there is no subsection (3)” in
§ 20-61 of the Omaha city code and alleged that the parties’
references to subsection (3) were intended to refer to subsec-
tion (c). Thus, Hinds’ position was that when defense counsel
specifically stipulated that “the elements would be met under
20-61, subsection 3,” she meant subsection (c), “which is to
stipulate that the alleged victim was placed ‘in fear of immi-
nent bodily harm.’” As such, Hinds argued that his plea was
not entered knowingly because he operated under the assump-
tion that the stipulated factual basis in support of his plea did
not contain a “sexual component.”
At the hearing on the motion to withdraw Hinds’ plea,
defense counsel sought to clarify the apparent confusion
as follows:
My client had an agreement to plead to subsection C, and
we would stipulate to the factual basis so that he could
avoid being on the Sex Offender Registry. As we entered
the plea, it is triggering a Sex Offender Registry require-
ment, which was not part of the plea agreement, which
is specifically stated on the record in the transcript that I
just provided the Court.
So I would ask the Court to consider allowing us to
withdraw the plea. And, if that is granted, I would ask
for a new date so that the City Prosecutor can file an
amended complaint; we can reenter into the plea agree-
ment, as planned; and then go forward with sentencing
under subsection C. As it is right now, the way that the
complaints are generated, it is saying that the subsection
that we pled to was 20-61, sub 3. Sub 3 doesn’t exist
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STATE V. HINDS
Cite as 32 Neb. App. 246when you look at the ordinance. It’s A, B, C, and D. If
you were going to say that 3 coincides with C, that is
placing [J.B.] in imminent bodily harm, which should
not trigger the [SORA] registration. But this complaint,
as it is filed, also has the words “sexual touch,” which
is subsection D. So, on the face, there are a number of
issues with this complaint. And, in addition, we did a
poor job at making a record. And I would include myself
in that.
The State opposed the motion on the following grounds:
Everything [defense counsel] said is true. You have
the record in front of you. We both tried to mitigate his
exposure to the Sex Offender Registry on the record.
However, as the Court also knows, that if the Court has
any indication from us — a complaint, a PSI — that there
is a sexual element to this, that the Court is duty bound to
put him on the Sex Offender Registry.
....
. . . [T]his is nothing more than a collateral attack
after the fact to mitigate his exposure to the Sex Offender
Registry.
The county court denied Hinds’ motion to withdraw his
plea and proceeded to sentencing. In the opinion and order
denying Hinds’ motion, the court emphasized its characteriza-
tion of the offense as “Assault and Battery, Sexual Assault[,]
Touch” and that “the court read through the elements of the
crime listed in the complaint, including [the allegations under
subsection (d)].” The court ultimately found that “[Hinds’]
assertion that he did not contemplate pleading to a registerable
offense is simply without merit.” Rather, “[t]he record is clear
that [Hinds] knew what he was charged with, the possible pen-
alties — including potential registration as a sex offender pur-
suant to SORA — and stipulated that the state could present
facts to prove him guilty.” Thus, the court denied the motion
to withdraw the plea.
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STATE V. HINDS
Cite as 32 Neb. App. 246The county court sentenced Hinds to 123 days in jail with
credit for 123 days of time served and ordered that Hinds
comply with the requirements of SORA. Hinds appealed to the
district court, alleging that the county court erred in (1) deny-
ing Hinds’ motion to withdraw his plea and (2) denying Hinds’
motion to continue trial. The district court affirmed, and this
appeal followed.
ASSIGNMENTS OF ERROR
Hinds assigns, restated, that the district court erred in affirm-
ing the county court’s denial of Hinds’ motion to withdraw his
plea. Hinds also assigns that the county court erred in impos-
ing an excessive sentence; however, Hinds failed to raise that
assignment of error on appeal to the district court and has thus
waived that issue in this appeal. See State v. Erlewine, 234
Neb. 855, 452 N.W.2d 764 (1990) (in appeal from intermediate
appeal to district court, higher appellate courts consider only
errors specifically assigned in appeal to district court and again
assigned as error in appeal to higher appellate court).
STANDARD OF REVIEW
[1-5] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion. State v. Avey, 288 Neb. 233, 846 N.W.2d
662 (2014). Both the district court and a higher appellate
court generally review appeals from the county court for error
appearing on the record. Id. When reviewing a judgment for
errors appearing on the record, an appellate court’s inquiry is
whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unrea-
sonable. Id. But we independently review questions of law in
appeals from the county court. Id. When deciding appeals from
criminal convictions in county court, we apply the same stan-
dards of review that we apply to decide appeals from criminal
convictions in district court. Id.- 254 -
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STATE V. HINDS
Cite as 32 Neb. App. 246ANALYSIS
Hinds assigns that the district court erred in affirming the
county court’s denial of his motion to withdraw his no contest
plea. Hinds argues that he “was misled to believe” that he
was pleading to a charge that would not trigger the require-
ment that he register as a sex offender. Brief for appellant
at 10. Hinds acknowledges that the county court “made it
clear that if the factual basis contained a sexual component,
[Hinds] would be placed on the Sex Offender Registry.” Id.However, Hinds maintains that “given the facts and evidence
in the record, [Hinds] was under the impression that the
factual basis did not contain a sexual component, so he was
unable to heed the Court’s warning.” Id. Hinds thus argues the
county court should have allowed him to withdraw his plea
because it was entered under the mistaken belief that his plea
and conviction would not trigger the registration requirements
under SORA.
[6,7] 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 rea-
son, provided that the prosecution has not been or would not
be substantially prejudiced by its reliance on the plea entered.
State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002). The
burden is upon the defendant to establish by clear and convinc-
ing evidence the grounds for withdrawal of a plea. Id.Hinds was charged with one count of assault and battery in
violation of § 20-61. In its entirety, § 20-61 reads as follows:
It shall be unlawful for any person purposely or know-
ingly to:
(a) Strike or attempt to strike another person with the
intent to cause bodily injury;
(b) Cause or attempt to cause bodily injury to another
person;
(c) Place another person in fear of imminent bodily
harm; or
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Cite as 32 Neb. App. 246(d) Touch the sexual or intimate parts of the body
of another person without his [or her] consent for the
purpose of arousing or gratifying the sexual desire of
either party.
The criminal complaint listed the charged offense as “Assault
and Battery (Sexual Assault - Touch),” which suggests that
Hinds was being charged with nonconsensual sexual touch
under § 20-61(d). Yet, the body of the complaint contained
allegations under each of the four subsections, (a) through (d),
and discussions on the record suggested an agreement between
the parties to narrow the allegations in the complaint to those
brought under subsection (c) alone. Moreover, the heading of
the complaint cited “§ 20-61(3),” and the parties later explained
that they understood subsection (3) to refer to subsection (c).
These inconsistencies in the complaint and in the discussions
on the record gave rise to an understandable confusion before
the county court regarding which subsection(s) of § 20-61
Hinds ultimately pled to violating.
The discussions at the plea hearing regarding the proposed
plea agreement are admittedly difficult to decipher, and the
lack of a written plea agreement exacerbates that difficulty.
However, at the hearing on Hinds’ motion to withdraw his
plea, defense counsel explained, with some degree of clar-
ity, the original intention of the parties and the source of the
confusion that arose regarding the stipulated factual basis.
Despite the State’s opposition to Hinds’ motion to withdraw
his plea, the prosecutor generally agreed with defense coun-
sel’s characterization of the intended plea agreement and the
nature of the miscommunication during the plea hearing.
Notwithstanding the confusion on the record in this case,
the apparent intention of the parties was that Hinds plead no
contest to a violation of § 20-61(c) and then stipulate to a
factual basis limited to the allegations under that subsection.
Yet, in light of the misleading references to “subsection 3”
and the parties’ acquiescence to the county court’s character-
ization of the offense as “sexual assault, touch,” the county
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Cite as 32 Neb. App. 246court understandably interpreted the stipulated factual basis to
include the allegations under subsection (d). Under that inter-
pretation, the county court was correct to conclude that the
stipulated factual basis in support of Hinds’ plea contained a
sexual component that triggered SORA. However, the record
on appeal clearly and convincingly establishes that such was
a misinterpretation of the parties’ intention. More importantly,
the record establishes that the county court’s interpretation of
the purported plea agreement and stipulated factual basis was
incongruous with Hinds’ understanding of those matters at the
time that he entered his plea.
In denying Hinds’ motion to withdraw his plea, the county
court indicated that Hinds’ argument in favor of withdrawal
was that “he did not contemplate pleading to a registerable
offense,” and thus, the court emphasized that Hinds “knew
what he was charged with, the possible penalties—including
potential registration as a sex offender pursuant to SORA.”
We agree Hinds was clearly aware that, at least in the first
instance, he was charged with a “registerable offense” and that
a conviction on the complaint as charged would have subjected
him to SORA. Although, immediately after the court advised
Hinds of that risk, defense counsel and the State ostensibly
agreed to “stipulate to the factual basis and . . . make it a non-
registerable offense.”
When the court suggested that Hinds may nevertheless be
subject to SORA depending on the nature of the factual basis
in support of his plea, Hinds immediately declared his inten-
tion to proceed to trial. However, Hinds ultimately reversed
course and pled no contest in reliance on the agreement
between defense counsel and the State to stipulate to a factual
basis “under [§] 20-61, subsection 3.” As defense counsel later
explained, the parties understood “subsection 3” to refer to
“subsection C,” which does not contain a sexual component.
Yet, the county court ultimately found Hinds guilty under
§ “20-61, subsection 3,” which the court interpreted to mean
the entirety of § 20-61, inclusive of subsection (d). While
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Cite as 32 Neb. App. 246this serious miscommunication foreclosed implementation of
the parties’ plea agreement as intended, such appears to have
been unbeknownst to and due to no fault of Hinds. Under these
circumstances, Hinds ought to have been allowed to withdraw
his plea so the parties could either rectify the miscommunica-
tion and proceed with the plea agreement as originally intended
or proceed to trial on the complaint as charged.
Thus, we conclude that Hinds carried his burden to prove
a fair and just reason to withdraw his no contest plea, and we
find that it was an abuse of discretion for the county court to
deny Hinds’ motion to withdraw his plea. We further conclude
that it was an abuse of discretion for the district court to affirm
the county court’s decision in that regard. Accordingly, we
reverse, and remand with directions to grant Hinds’ motion to
withdraw his plea.
CONCLUSION
For the foregoing reasons, we reverse, and remand with
directions to grant Hinds’ motion to withdraw his plea.
Reversed and remanded with directions.