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State v. Cooper11/25/2003
(not designated for permanent publication)
Nickey L. Cooper entered pleas of no contest in the district court for Lincoln County, Nebraska, to second degree forgery, value $300 or more, under Neb. Rev. Stat. § 28-603(1) (Reissue 1995), and two counts of theft by shoplifting, value less than $200, third offense, under Neb. Rev. Stat. § 28-511.01 (Reissue 1995). On appeal, the issue is whether it was plain error to enhance Cooper's sentences without determining whether Cooper was represented by or waived counsel in his prior convictions.
FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 2002, Cooper was charged by information with several offenses, most of which were dismissed once Cooper agreed to plead no contest to second degree forgery, value $300 or more, and two counts of theft by shoplifting, value less than $200, third offense. On July 16, prior to entering his pleas of no contest, Cooper was read his rights and the charges as stated in the three separate informations. The informations pertaining to the shoplifting charges contained four dates on which Cooper was convicted of charges that would allegedly enhance his penalty to a Class IV felony instead of a Class I misdemeanor under Neb. Rev. Stat. § 28-518(6) (Reissue 1995), because this was allegedly his third offense.
On December 16, 2002, Cooper was sentenced in the Lincoln County District Court to 3 to 6 years' imprisonment for the second degree forgery conviction and 1 to 3 years' imprisonment for each conviction for theft by shoplifting, third offense, with all sentences to be served consecutively. Cooper timely appeals the convictions to this court. Because this case involves pleas of no contest, we do not hear oral argument. See Neb. Ct. R. of Prac. 11E(5)a (rev. 2000). Briefing is complete, and the case is ripe for decision.
ASSIGNMENTS OF ERROR
Cooper alleges that (1) there was insufficient evidence for the district court to find him guilty of third-offense shoplifting, (2) the district court violated Cooper's due process rights by failing to provide a hearing where the State must prove the validity of any prior convictions, and (3) the sentences imposed by the district court were excessive.
STANDARD OF REVIEW
On matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).
A sentencing court's determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court's determination is clearly erroneous. State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996); State v. Werner, 8 Neb. App. 684, 600 N.W.2d 500 (1999).
An appellate court may assert plain error on its own motion. State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001).
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Jackson, 4 Neb. App. 413, 544 N.W.2d 379 (1996).
ANALYSIS
Plain Error
Cooper alleges error by the trial court in finding him guilty of third-offense shoplifting, because the State did not set forth sufficient evidence to sustain the conviction for a third offense. In a proceeding to enhance a punishment because of prior convictions, the State has the burden to prove such prior convictions. State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994). The State cannot meet its burden of proof with a judgment that would have been invalid to support a
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