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State v. Hittle8/10/2004
Hittle was charged with driving during a 15-year suspension, a Class IV felony. This charge was reduced, pursuant to a plea agreement, from a charge of driving during a 15-year suspension, second offense, a Class III felony. On July 14, 2003, the district court accepted a plea of no contest. A presentence investigation was then conducted, and on August 18, Hittle was sentenced to 20 months' to 5 years' imprisonment. This appeal now follows.
III. ASSIGNMENTS OF ERROR
Hittle assigns as error that (1) the district court failed to accept Hittle's guilty plea and then considered Hittle's no contest plea as a "lack of contrition" at sentencing and (2) the district court imposed an excessive sentence.
IV. ANALYSIS
1. Standard of Review
A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court's determination only in case of an abuse of discretion. State v. Cardona, 10 Neb. App. 815, 639 N.W.2d 653 (2002) (citing State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999)).
Sentences within statutory limits will only be disturbed by an appellate court if the sentence complained of was an abuse of judicial discretion. Id. (citing State v. Lobato, 259 Neb. 579, 611 N.W.2d 101 (2000)). An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. Id. (citing Lobato, supra).
2. Hittle's Plea
Hittle argues that the district court abused its discretion in refusing to accept Hittle's guilty plea and then subsequently considering Hittle's "lack of contrition" when imposing a sentence. We will first address Hittle's plea.
A reading of the record reflects that the court discussed Hittle's plea with Hittle at great length. For the purposes of discussing the plea agreement, Hittle's waiver of his rights, and Hittle's potential sentencing, the court appears to have been operating under the premise that Hittle would be pleading guilty. However, when the court asked Hittle how he pled, Hittle stated, "No contest." After the court sought clarification, Hittle then stated, "Well, I'll plead guilty."
The court explained to Hittle the difference between a plea of guilty and a plea of no contest and then asked counsel what the plea was to be under the plea agreement. Hittle's attorney stated that under the plea agreement, Hittle would plead guilty, but that Hittle's attorney did not think that the State would object to a plea of no contest. The State's attorney stated that she did not object.
The court then stated to Hittle, "[S]ince your plea tendered is one of nolo contendere or no contest, I'm not going to ask you about this and what might have happened and what you did or didn't do," to which Hittle stated that he understood. The court also stated to Hittle's attorney:
I might state at least as far as I am concerned, and I don't know who the sentencing judge would be, I've always considered and told a defendant that pleads guilty that he has taken a first and very significant step toward rehabilitation and that would be considered in terms of an appropriate sentence. A plea of nolo contendere does not have that aspect, although depending on the statement made in the [presentence investigation report], that would also be considered. Do you understand what I'm saying?
Hittle's attorney stated that he understood.
The court then asked Hittle, "[I]s there anything now that you don't feel you fully understood or understand about what has taken place this morning and what you have done? Do you have any question or que
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